(Requests for a preliminary ruling from the Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm, Sweden) and the Court of Appeal (England & Wales) (Civil Division) (United Kingdom))

(Reference for a preliminary ruling — Directive 2002/58/EC — Processing of personal data and the protection of privacy in the electronic communications sector — National legislation imposing a general obligation to retain data relating to electronic communications — Article 15(1) — Charter of Fundamental Rights of the European Union — Article 7 — Right to respect for private life — Article 8 — Right to the protection of personal data — Serious interference — Justification — Article 52(1) — Conditions — Legitimate objective of fighting serious crime — Requirement for a legal basis in national law — Requirement of strict necessity — Requirement of proportionality in a democratic society)

Table of contents

I – Introduction

II – Legal framework

A – Directive 2002/58

B – Swedish law

1. The scope of the retention obligation

2. Access to retained data

(a) The LEK

(b) The RB

(c) Law 2012:278

3. The period for which data are retained

4. The protection and security of the data retained

C – United Kingdom law

1. The scope of the retention obligation

2. Access to retained data

3. The period for which data are retained

4. The protection and security of the data retained

III – The disputes in the main proceedings and the questions referred for a preliminary ruling

A – Case C 203/15

B – Case C 698/15

IV – Procedure before the Court

V – Assessment of the questions referred for a preliminary ruling

A – The admissibility of the second question referred in Case C 698/15

B – The compatibility of a general data retention obligation with the regime established by Directive 2002/58

1. The inclusion of general data retention obligations within the scope of Directive 2002/58

2. The possibility of derogating from the regime established by Directive 2002/58 in order to create a general data retention obligation

C – The applicability of the Charter to general data retention obligations

D – The compatibility of a general data retention obligation with the requirements laid down in Article 15(1) of Directive 2002/58 and Articles 7, 8 and 52(1) of the Charter

1. The requirement for a legal basis in national law

2. Observance of the essence of the rights enshrined in Articles 7 and 8 of the Charter

3. The existence of an objective of general interest recognised by the European Union that is capable of justifying a general data retention obligation

4. The appropriateness of general data retention obligations with regard to the fight against serious crime

5. The necessity of general data retention obligations in the fight against serious crime

(a) The strict necessity of general data retention obligations

(b) The mandatory nature of the safeguards described by the Court in paragraphs 60 to 68 of Digital Rights Ireland in the light of the requirement of strict necessity

6. The proportionality, within a democratic society, of a general data retention obligation in the light of the fight against serious crime

VI – Conclusion

1. In 1788, James Madison, one of the authors of the United States Constitution, wrote: ‘If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.’ (2)

2. The present cases lead us into the heart of this ‘great difficulty’ identified by Madison. They concern the compatibility with EU law of national regimes which impose on providers of publicly accessible electronic communications services (‘service providers’) an obligation to retain data relating to electronic communications (‘communications data’) in relation to all means of communication and all users (‘a general data retention obligation’).

3. On the one hand, the retention of communications data enables ‘the government to control the governed’ by providing the competent authorities with a means of investigation that may prove useful in fighting serious crime, and in particular in combating terrorism. In substance, the retention of communications data gives the authorities a certain ability to ‘examine the past’ by accessing data relating to communications which a person has effected even before being suspected of involvement in a serious crime. (3)

4. However, on the other hand, it is imperative to ‘oblige [the government] to control itself’, with respect to both the retention of data and access to the data retained, given the grave risks engendered by the existence of databases which encompass all communications made within the national territory. Indeed, these enormous databases give anyone having access to them the power instantly to catalogue every member of the population in question. (4) These risks must be scrupulously addressed, inter alia, by means of an examination of the strict necessity and proportionality of general data retention obligations, such as those at issue in the main proceedings.

5. Thus, in the present cases, the Court of Justice and the referring courts are prevailed upon to pinpoint the correct balance between the obligation which Member States are under to ensure the security of individuals within their territory and observance of the fundamental rights to privacy and the protection of personal data, enshrined in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

6. I shall be mindful of Madison’s ‘great difficulty’ as I examine the questions referred to the Court in the present cases, which concern, more specifically, the compatibility with Directive 2002/58/EC (5) and Articles 7 and 8 of the Charter of national regimes establishing a general data retention obligation. In order to answer those questions, the Court will in particular need to clarify how its judgment in Digital Rights Ireland and Others, (6) (‘Digital Rights Ireland’), in which the Grand Chamber of the Court held Directive 2006/24/EC (7) to be invalid, is to be interpreted in the national context.

7. For the reasons which I shall set out below, I have the feeling that a general data retention obligation imposed by a Member State may be compatible with the fundamental rights enshrined in EU law, provided that it is strictly circumscribed by a series of safeguards, and I shall identify these in the course of my analysis.

‘1. This Directive provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the [European Union].

2. The provisions of this Directive particularise and complement Directive [95/46] for the purposes mentioned in paragraph 1. Moreover, they provide for protection of the legitimate interests of subscribers who are legal persons.

3. This Directive shall not apply to activities which fall outside the scope of the [TFEU], such as those covered by Titles V and VI of the [TEU], and in any case to activities concerning public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the activities of the State in areas of criminal law.’

‘Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive [95/46]. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of [European Union] law, including those referred to in Article 6(1) and (2) [TEU].’

B –Swedish law

10. Directive 2006/24, which has now been held to be invalid, was transposed into Swedish law by the amendments made to Lagen (2003:389) om elektronisk kommunikation (Law 2003:389 on electronic communications) (‘the LEK’) and to Förordningen (2003:396) om elektronisk kommunikation (Regulation 2003:396 on electronic communications) (‘the FEK’), both of which entered into force on 1 May 2012.

1. The scope of the retention obligation

11. It is clear from the provisions of Paragraph 16a of Chapter 6 of the LEK that service providers are required to retain the communications data necessary to identify the source and destination of communications, the date, time, duration and type of each communication, the communications equipment used and the location of mobile communication equipment used at the start and end of each communication. The types of data that must be retained are specified in further detail in Paragraphs 38 to 43 of the FEK.

13. The data to be retained include not only all the data that had to be retained pursuant to Directive 2006/24, but also data relating to unsuccessful communications as well as data relating to the location at which mobile telephone communications are ended. As under the regime laid down in the directive, the data to be retained do not include the content of communications.

2. Access to retained data

14. Access to retained data is governed by three laws, namely the LEK, the Rättegångsbalken (Code of Judicial Procedure) (‘the RB’) and the Lagen (2012:278) om inhämtning av uppgifter om elektronisk kommunikation i de brottsbekämpande myndigheternas underrättelseverksamhet (Law 2012:278 on the collection of data on electronic communications in the law enforcement authorities’ investigative activities) (‘Law 2012:278’).

(a) The LEK

15. Under the provisions of point 2 of the first subparagraph of Paragraph 22 of Chapter 6 of the LEK, every service provider must communicate subscription data, on request, to the prosecuting authority, to the police, to the Säkerhetspolisen (the Swedish security service, ‘the Säpo’) and to any other public law enforcement authority, if the data relate to a suspected crime. Under those provisions, it is not necessary for the crime in question to be a serious crime.

16. Subscription data means, in substance, data relating to the name, title, postal address, telephone number and IP address of the subscriber.

17. Under the LEK, the communication of subscription data is not subject to any prior review, although it may be the subject of an ex post facto administrative review. In addition, there are no limits on the number of authorities that may have access to the data.

(b) The RB

18. The RB governs the surveillance of electronic communications in the course of preliminary investigations.

19. In substance, the surveillance of electronic communications may be ordered only where there is credible evidence to suggest that a person has committed an offence punishable by a term of imprisonment of not less than six months or some other specifically identified offence, if such a measure is particularly necessary for the investigation.

20. In addition to the cases just mentioned, such surveillance may be carried out for the purposes of investigating any person where there is a serious suspicion that he has committed an offence that is punishable by a term of imprisonment of not less than two years, if such a measure is particularly necessary for the investigation.

21. Under Paragraph 21 of Chapter 27 of the RB, the prosecuting authority must normally obtain the authorisation of a competent court before commencing the surveillance of electronic communications.

22. Notwithstanding, if it appears that making an application to a competent court before commencing the surveillance of electronic communications — where such a measure is of vital importance to the investigation — is incompatible with the urgency of the investigation or would hinder it, authorisation may be granted by the prosecuting authority pending a decision of a competent court. The prosecuting authority must immediately inform the court thereof in writing and the court must then promptly consider whether the measure is justified.

(c) Law 2012:278

23. In the context of information gathering, under Paragraph 1 of Law 2012:278, the national police, the Säpo and the Tullverket (the Swedish customs authority) may, subject to the conditions laid down in that law, collect communications data without the knowledge of the service provider.

24. Under Paragraphs 2 and 3 of Law 2012:278, data may be collected where the circumstances are such that it is particularly necessary to do so in order to avert, prevent or detect criminal activity involving one or more offences punishable by a term of imprisonment of no less than two years or one of the acts listed in Paragraph 3 (which include, in particular, various forms of sabotage and espionage).

25. A decision to collect data in this way is taken by the head of the authority concerned or by another person to whom that power is delegated.

26. The decision must indicate the criminal activity in question, the period covered and the telephone number, any other address, the electronic communications equipment and the geographical area concerned. The duration of the authorisation must not be longer than is necessary. The period following the date of an authorisation decision may not exceed one month.

27. This type of measure is not subject to any prior review. However, pursuant to Paragraph 6 of Law 2012:278, the Säkerhets- och integritetsskyddsnämnden (the Commission on Security and Integrity Protection, Sweden) must be informed of any decision authorising the collection of data. Under Paragraph 1 of Lagen (2007:980) om tillsyn över viss brottsbekämpande verksamhet (Law 2007:980 on the supervision of certain law enforcement activities), that body must supervise the application of the law by the law enforcement authorities.

3. The period for which data are retained

28. It is clear from the provisions of Paragraph 16d of Chapter 6 of the LEK that the data referred to in Paragraph 16a thereof must be retained for a period of six months from the day on which the communication is terminated, after which they must immediately be erased, unless otherwise provided for in the second subparagraph of Paragraph 16d of Chapter 6 of the LEK. Pursuant to those last provisions, data that has been requested before the expiry of the retention period but not communicated must be erased immediately after it is communicated.

4. The protection and security of the data retained

29. The first subparagraph of Paragraph 20 of Chapter 6 of the LEK prohibits the unauthorised dissemination or use of communications data.

30. Pursuant to the provisions of Paragraph 3a of Chapter 6 of the LEK, service providers must take appropriate technical and organisational measures to ensure that processed data are protected. The preparatory work relating to that provision indicates that it is not permissible to determine the level of protection by weighing technical considerations against costs and the risk of infringement of privacy.

31. Further rules on data protection are set out in Paragraph 37 of the FEK and in the regulations and guidelines of the Post- och telestyrelsen (Swedish Post and Telecommunications Authority, ‘the PTS’) on safeguards in the retention and processing of data for law enforcement purposes (PTSFS No 2012:4). Those texts state, inter alia, that service providers must take measures to protect data against unintentional or unauthorised destruction, against unauthorised retention, processing and access and against unauthorised disclosure. Service providers must also continually and systematically ensure the security of data, having regard to the particular risks associated with the retention obligation.

32. Swedish law contains no provisions concerning the place where the data are to be stored.

33. Under Chapter 7 of the LEK, the regulatory authority has power, where service providers fail to fulfil their obligations, to issue orders and prohibitions, which may carry a penalty, and to order a partial or total cessation of business.

C –United Kingdom law

34. The provisions governing the retention of data are set out in the Data Retention and Investigatory Powers Act 2014 (‘the DRIPA’), the Data Retention Regulations 2014 (SI 2014/2042) (‘the 2014 Regulations’) and the Retention of Communications Data Code of Practice (‘the Retention Code of Practice’).

35. The provisions governing access to communications data are to be found in Chapter II of Part I of the Regulation of Investigatory Powers Act 2000 (‘the RIPA’), the Regulation of Investigatory Powers (Communications Data) Order 2010 (SI 2010/480), as amended by the Regulation of Investigatory Powers (Communications Data) (Amendment) Order 2015 (SI 2015/228) (‘the RIPA Amendment Order’) and the Acquisition and Disclosure of Communications Data Code of Practice (‘the Acquisition Code of Practice’).

1. The scope of the retention obligation

36. Under section 1 of the DRIPA, the Secretary of State for the Home Department (‘the Home Secretary’) may require service providers to retain relevant communications data. In substance, that obligation may extend to all the data generated as a result of communications using a postal service or a telecommunication system, with the exception of the content of the communication. The data may include, in particular, the location of the user of the service and data identifying the IP address (Internet Protocol address) or any other identifier belonging to the sender or recipient of a communication.

37. The purposes which may justify the issuing of a retention notice include the interests of national security, the prevention or detection of crime or the prevention of disorder, the interests of the economic well-being of the United Kingdom in so far as those interests are also relevant to the interests of national security, the interests of public safety, the protection of public health, the assessment or collection of any tax, contribution or other sum payable to the government, the prevention of harm to physical or mental health in urgent cases, providing assistance in investigations into alleged miscarriages of justice, the identification of persons who have died or who are unable to identify themselves because of a condition other than one resulting from a crime (such as a natural disaster or an accident), exercising functions relating to the regulation of financial services and markets or to financial stability and any other purpose specified in an order made by the Home Secretary under section 22(2) of the DRIPA.

38. There is no requirement in the national legislation for the issue of a retention notice to be subject to prior judicial or independent authorisation. The Home Secretary must ensure that the retention obligation is ‘necessary and proportionate’ to one or more of the purposes that is to be achieved by retaining the relevant communications data.

2. Access to retained data

39. Under section 22(4) of the RIPA, the public authorities may, by notice, require service providers to disclose communications data to them. The form and content of such notices is governed by section 23(2) of the RIPA. Such notices are limited in time by provisions governing cancellation and renewal.

40. The acquisition of communications data must be necessary and proportionate to one or more of the purposes set out in section 22 of the RIPA, which correspond to the purposes which may justify the retention of data described in point 37 of this Opinion.

41. It is clear from the Acquisition Code of Practice that a court order is necessary in the case of an application for access which is made in order to identify a journalist’s source, as in the case of applications for access made by local authorities.

42. Leaving aside those cases, before public authorities can access data it is necessary for authorisation to be given by the designated person within the relevant authority. A designated person is the person holding the prescribed office, rank or position within the relevant public authority that has been designated for the purpose of acquiring communications data in the RIPA Amendment Order.

43. No judicial or independent authorisation is specifically required in order to access communications data that is subject to legal professional privilege or communications data relating to medical doctors, Members of Parliament or ministers of religion. The Acquisition Code of Practice merely states that special consideration must be given to the necessity and proportionality of applications for access to such data.

3. The period for which data are retained

44. Section 1(5) of the DRIPA and Regulation 4(2) of the 2014 Regulations provide for a maximum data retention period of 12 months. In accordance with the Retention Code of Practice, the period must be only as long as is necessary and proportionate. Regulation 6 of the 2014 Regulations requires the Home Secretary to keep retention notices under review.

4. The protection and security of the data retained

45. Under section 1 of the DRIPA, service providers are prohibited from disclosing retained data unless such disclosure is in accordance with Chapter II of Part I of the RIPA, a court order or other judicial authorisation or warrant or a regulation adopted by the Home Secretary under section 1 of the DRIPA.

46. In accordance with Regulations 7 and 8 of the 2014 Regulations, service providers must ensure the integrity and security of retained data, protect them from accidental or unlawful destruction, accidental loss or alteration and unauthorised or unlawful retention, processing, access or disclosure. They must destroy the data so as to make it impossible to access if the retention of the data ceases to be authorised and must put in place adequate security systems. Regulation 9 of the 2014 Regulations imposes a duty on the Information Commissioner to audit compliance by service providers with these requirements.

47. The authorities to which service providers transmit communications data must handle and store the data, and all copies, extracts and summaries of it, securely. In accordance with the Acquisition Code of Practice, the requirements of the Data Protection Act, which transposed Directive 95/46, must be observed.

48. The RIPA provides for an Interception of Communications Commissioner whose remit is to provide independent oversight of the exercise and performance of the powers and duties set out in Chapter II of Part I of the RIPA. The Commissioner does not provide any oversight of the use of section 1 of the DRIPA. He must make regular reports to the public and to Parliament (section 57(2) and section 58 of the RIPA) and track record keeping and reporting by public authorities (Acquisition Code of Practice, paragraphs 6.1 to 6.8). Complaints may be made to the Investigatory Powers Tribunal if there is reason to believe that data have been acquired inappropriately (section 65 of the RIPA).

49. It is apparent from the Acquisition Code of Practice that the Interception of Communications Commissioner has no power to refer cases to the Investigatory Powers Tribunal. He may merely inform persons of a suspected unlawful use of powers if he is able to ‘establish that an individual has been adversely affected by any wilful or reckless failure’. However, he is not permitted to disclose information if national security could be threatened by such disclosure, even if he is satisfied that there has been a wilful or reckless failure.

III – The disputes in the main proceedings and the questions referred for a preliminary ruling

A –Case C‑203/15

50. On 9 April 2014, the day after the judgment in Digital Rights Ireland was handed down, Tele2 Sverige notified the PTS of its decision to cease retaining the data referred to in Chapter 6 of the LEK. Tele2 Sverige also proposed to delete the data which had been retained until then in accordance with that chapter. Tele2 Sverige had concluded that the Swedish legislation transposing Directive 2006/24 was not in conformity with the Charter.

51. On 15 April 2014, the Rikspolisstyrelsen (the National Police Board, Sweden, ‘the RPS’) complained to the PTS that Tele2 Sverige had ceased transmitting to it data relating to certain electronic communications. In its complaint, the RPS stated that Tele2 Sverige’s refusal to do so would have serious consequences for the police’s law enforcement activities.

52. By decision of 27 June 2014, the PTS ordered Tele2 Sverige to resume the retention of data in accordance with Paragraph 16a of Chapter 6 of the LEK and Paragraphs 37 to 43 of the FEK by 25 July 2014 at the latest.

53. Tele2 Sverige brought an appeal before the Förvaltningsrätten i Stockholm (Administrative Court, Stockholm, Sweden) against the PTS’s decision. By judgment of 13 October 2014, the Förvaltningsrätten i Stockholm (Administrative Court, Stockholm) dismissed that appeal.

54. Tele2 Sverige brought an appeal against the judgment of the Förvaltningsrätten i Stockholm (Administrative Court, Stockholm) before the referring court, seeking the setting aside of the contested decision.

55. Finding that there were arguments both in favour of and against the view that such an extensive retention obligation as that provided for in Paragraph 16a of Chapter 6 of the LEK was compatible with Article 15(1) of Directive 2002/58 and Articles 7, 8 and 52(1) of the Charter, the Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm, Sweden) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is a general obligation to retain data in relation to all persons and all means of electronic communication and extending to all traffic data, without any distinction, limitation or exception being made by reference to the objective of fighting crime [as described in paragraphs 13 to 18 of the order for reference] compatible with Article 15(1) of Directive 2002/58, taking into account Articles 7, 8 and 52(1) of the Charter?

(2) In the event that the first question is answered in the negative, may such a retention obligation nevertheless be permitted where:

(a) access by the national authorities to the retained data is governed in the manner specified in paragraphs 19 to 36 [of the order for reference], and

(b) the protection and security of the data are regulated in the manner specified in paragraphs 38 to 43 [of the order for reference], and

(c) all relevant data must be retained for a period of six months from the date on which the communication was terminated before then being deleted, as described in paragraph 37 [of the order for reference]?’

B –Case C‑698/15

56. Messrs Watson, Brice and Lewis have brought before the High Court of Justice (England and Wales), Queen’s Bench Division (Administrative Court), applications for judicial review of the lawfulness of the data retention regime in section 1 of DRIPA, which empowers the Home Secretary to require public telecommunications operators to retain communications data for a maximum period of 12 months, retention of the content of the communications concerned being excluded.

57. Open Rights Group, Privacy International and the Law Society of England and Wales were granted leave to intervene in each of those applications.

58. By judgment of 17 July 2015, the High Court of Justice declared that the regime in question was inconsistent with EU law in that it did not satisfy the requirements laid down in Digital Rights Ireland, which it regarded as applying to the rules in the Member States on the retention of data relating to electronic communications and on access to such data. The Home Secretary brought an appeal against that judgment before the referring court.

59. In its judgment of 20 November 2015, the Court of Appeal (England and Wales) (Civil Division) expressed the provisional view that, in Digital Rights Ireland, the Court of Justice was not laying down specific mandatory requirements of EU law with which national legislation must comply, but was simply identifying and describing protections that were absent from the harmonised EU regime.

60. Nevertheless, considering that the answers to those questions of EU law were not clear and were necessary in order for it to give judgment in the proceedings, the Court of Appeal (England & Wales) (Civil Division) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does the judgment of the Court of Justice in Digital Rights Ireland (including, in particular, paragraphs 60 to 62 thereof) lay down mandatory requirements of EU law applicable to a Member State’s domestic regime governing access to data retained in accordance with national legislation, in order to comply with Articles 7 and 8 of the [Charter]?

(2) Does the judgment of the Court of Justice in Digital Rights Ireland expand the scope of Articles 7 and/or 8 of the Charter beyond that of Article 8 of the European Convention of Human Rights (“ECHR”) as established in the jurisprudence of the European Court of Human Rights (“ECtHR”)?’

IV – Procedure before the Court

61. The requests for a preliminary ruling were registered at the Registry of the Court of Justice on 4 May 2015 (Case C‑203/15) and 28 December 2015 (Case C‑698/15).

62. By order of 1 February 2016, the Court decided that Case C‑698/15 should be dealt with under the expedited procedure provided for in Article 105(1) of the Rules of Procedure of the Court of Justice.

63. In Case C‑203/15, written observations were submitted by Tele2 Sverige, the Belgian, Czech, Danish, German, Estonian, Irish, Spanish, French, Hungarian, Netherlands, Swedish and United Kingdom Governments and the European Commission.

64. In Case C‑698/15, written observations were submitted by Messrs Watson, Brice and Lewis, Open Rights Group, Privacy International, the Law Society of England and Wales, the Czech, Danish, German, Estonian, Irish, French, Cypriot, Polish, Finnish and United Kingdom Governments and the Commission.

65. By decision of the Court of 10 March 2016, the two cases were joined for the purposes of the oral part of the procedure and the judgment.

66. The representatives of Tele2 Sverige, Messrs Watson, Brice and Lewis, Open Rights Group, Privacy International, the Law Society of England and Wales, the Czech, Danish, German, Estonian, Irish, Spanish, French, Finnish, Swedish and United Kingdom Governments and the Commission attended the hearing, held on 12 April 2016, and presented oral argument.

V – Assessment of the questions referred for a preliminary ruling

67. By the first question referred in Case C‑203/15, the national court asks the Court of Justice whether, in the light of Digital Rights Ireland, Article 15(1) of Directive 2002/58 and Articles 7, 8 and 52(1) of the Charter are to be interpreted as precluding Member States from imposing on service providers a general obligation to retain data such as that at issue in the main proceedings, regardless of any safeguards that might accompany such an obligation.

68. In the event that that question is answered in the negative, the second question referred in Case C‑203/15 and the first question referred in Case C‑698/15 seek to establish whether those provisions are to be interpreted as precluding Member States from imposing on service providers a general data retention obligation where that obligation is not accompanied by all the safeguards laid down by the Court in paragraphs 60 to 68 of Digital Rights Ireland in connection with access to the data, the period of retention and the protection and security of the data.

69. Since these three questions are closely interlinked, I shall examine them together in the assessment that follows.

70. On the other hand, the second question referred in Case C‑698/15 must be addressed separately. By that question, the referring court asks the Court of Justice whether Digital Rights Ireland extended the scope of Article 7 and/or Article 8 of the Charter beyond that of Article 8 of the ECHR. I shall set out in the following section the reasons for which I consider that this question must be rejected as inadmissible.

71. Before commencing my examination of the questions referred, I think it useful to set out again the types of data that are covered by the retention obligations at issue in the main proceedings. According to the information provided by the referring courts, the scope of the obligations at issue is essentially the same as that of the obligation which was provided for in Article 5 of Directive 2006/24. (8) The communications data covered by the retention obligations may be arranged schematically into four categories: (9)

– data identifying both the source and the destination of communications;

– data identifying the location of both the source and the destination of communications;

– data relating to the date, time and duration of communications and

– data identifying the type of each communication and the type of equipment used.

72. The content of communications is excluded from the general data retention obligations at issue in the main proceedings, as was required by Article 5(2) of Directive 2006/24.

A –The admissibility of the second question referred in Case C‑698/15

73. The second question referred in Case C‑698/15 invites the Court to clarify whether Digital Rights Ireland extended the scope of Article 7 and/or Article 8 of the Charter beyond that of Article 8 of the ECHR, as interpreted by the ECtHR.

74. That question reflects, in particular, an argument raised by the Home Secretary before the referring court, according to which the case-law of the ECtHR does not require that access to data should be subject to prior authorisation by an independent body or that the retention of such data and access to it must be confined to the sphere of fighting serious crime.

75. I think that this question must be rejected as inadmissible, for the following reasons. Clearly, the reasoning and the approach adopted by the Court in Digital Rights Ireland are of crucial importance to the resolution of the disputes in the main proceedings. However, the fact that that judgment may possibly have extended the scope of Article 7 and/or Article 8 of the Charter beyond that of Article 8 of the ECHR is not in itself relevant to the resolution of those disputes.

76. It must be borne in mind in this connection that, in accordance with Article 6(3) TEU, fundamental rights, as guaranteed by the ECHR, constitute general principles of EU law. However, as the European Union has not acceded to the ECHR, the latter does not constitute a legal instrument which has been formally incorporated into the legal order of the European Union. (10)

77. Admittedly, the first sentence of Article 52(3) of the Charter lays down a rule of interpretation according to which, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, ‘the meaning and scope of those rights [must] be the same as those laid down by the said Convention’.

78. However, according to the second sentence of Article 52(3) of the Charter, ‘this provision [does] not prevent Union law providing more extensive protection’. To my mind, it is clear from that sentence that the Court is entitled, if it regards it as necessary in the context of EU law, to extend the scope of the provisions of the Charter beyond that of the corresponding provisions of the ECHR.

79. I would add, as a subsidiary point, that Article 8 of the Charter, which was interpreted by the Court in Digital Rights Ireland, establishes a right that does not correspond to any right guaranteed by the ECHR, namely the right to the protection of personal data, as is confirmed, moreover, by the explanations relating to Article 52 of the Charter. (11) Thus, the rule of interpretation laid down in the first sentence of Article 52(3) of the Charter does not, in any event, apply to the interpretation of Article 8 of the Charter, as has been pointed out by Messrs Brice and Lewis, Open Rights Group, Privacy International, the Law Society of England and Wales and the Czech, Irish and Finnish Governments.

80. It follows from the foregoing that EU law does not preclude Articles 7 and 8 of the Charter from providing more extensive protection than that provided for in the ECHR. Therefore, whether or not Digital Rights Ireland extended the scope of those provisions of the Charter beyond that of Article 8 of the ECHR is not, in itself, relevant to the resolution of the disputes in the main proceedings. The decision that is taken on these disputes will essentially depend on the circumstances under which a general data retention obligation may be regarded as consistent with Article 15(1) of Directive 2002/58 and Articles 7, 8 and 52(1) of the Charter, interpreted in the light of Digital Rights Ireland, which is precisely the subject of the three other questions referred in the present cases.

81. According to consistent case-law, a reference from a national court may be refused only if it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (12)

82. In this instance, for the reasons which I have set out, the second question referred in Case C‑698/15 seems to me to be of purely theoretical interest, inasmuch it would not be possible to glean from any answer to that question any factors necessary for an interpretation of EU law which the referring court might usefully apply in order to resolve, in accordance with that law, the dispute before it. (13)

83. That being so, I consider that the question must be rejected as inadmissible, as Mr Watson, the Law Society of England and Wales and the Czech Government have rightly contended.

B –The compatibility of a general data retention obligation with the regime established by Directive 2002/58

84. In this section I shall address the question whether the Member States are entitled to avail themselves of the possibility offered by Article 15(1) of Directive 2002/58 in order to impose a general data retention obligation. I shall not, however, examine the particular requirements that must be observed by Member States wishing to avail themselves of that possibility, since I shall analyse those amply in a later section. (14)

85. Indeed, Open Rights Group and Privacy International have argued that such an obligation would be inconsistent with the harmonised regime established by Directive 2002/58 regardless of whether or not it meets the requirements which arise from Article 15(1) thereof, since it would completely undermine the substance of the rights and the regime established by that directive.

86. Before that argument may be considered, it is necessary first to establish whether general data retention obligations fall within the scope of the directive.

1. The inclusion of general data retention obligations within the scope of Directive 2002/58

87. None of the parties that have submitted observations to the Court has disputed the fact that general data retention obligations, such as those at issue in the main proceedings, fall within the concept of the ‘processing of personal data in connection with the provision of publicly available electronic communications services in public communications networks in the [Union]’ for the purposes of Article 3 of Directive 2002/58.

88. However, the Czech, French, Polish and United Kingdom Governments have submitted that general data retention obligations fall within the ambit of the exclusion laid down in Article 1(3) of Directive 2002/58. First, the national provisions governing access to the data and its use by the police and judicial authorities of the Member States relate to public security, defence and State security, or at least fall within the ambit of criminal law. Secondly, the sole objective of retaining the data is to enable the police and judicial authorities to access it and use it. Therefore, data retention obligations are excluded from the scope of the directive as a result of the aforementioned provision.

90. First of all, the wording of Article 15(1) of Directive 2002/58 confirms that retention obligations imposed by the Member States fall within the scope of the directive. Indeed, that provision states that ‘Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph’. I think it difficult, to say the least, to maintain that retention obligations are excluded from the scope of the directive when Article 15(1) of the directive governs the possibility of imposing such obligations.

91. In reality, as Messrs Watson, Brice and Lewis, the Belgian, Danish, German and Finnish Governments and the Commission have argued, a general data retention obligation, such as those at issue in the main proceedings, is a measure implementing Article 15(1) of Directive 2002/58.

92. Secondly, the fact that provisions governing access may fall within the scope of the exclusion laid down in Article 1(3) of Directive 2002/58 (15) does not mean that retention obligations must also fall within the scope of that exclusion, and thus outside the scope of the directive.

93. In this connection, the Court has already had occasion to clarify that the activities mentioned in the first indent of Article 3(2) of Directive 95/46/EC, (16) the wording of which is equivalent to that of Article 1(3) of Directive 2002/58, are activities of the State or of State authorities and unrelated to the fields of activity of individuals. (17)

94. The retention obligations at issue in the main proceedings, however, are imposed on private operators and concern the private business of providing electronic communications services, as the Commission has pointed out. Moreover, those obligations are imposed independently of any application for access on the part of the police or judicial authorities and, more generally, independently of any act on the part of State authorities relating to public security, defence, State security or criminal law.

95. Thirdly, the approach taken by the Court in its judgment in Ireland v Parliament and Council (18) confirms that general data retention obligations do not fall within the sphere of criminal law. Indeed, the Court held that Directive 2006/24, which established such an obligation, related not to criminal law but to the functioning of the internal market and that Article 95 EC (now Article 114 TFEU) was therefore the proper legal basis for the adoption of that directive.

96. In reaching that conclusion, the Court found, in particular, that the provisions of that directive were essentially limited to the activities of service providers and did not govern access to data or the use thereof by the police or judicial authorities of the Member States. (19) I infer from that that provisions of national law which lay down a similar retention obligation to that provided for in Directive 2006/24 do not fall within the sphere of criminal law either.

97. Having regard to the foregoing, I am of the opinion that general data retention obligations do not fall within the scope of the exclusion laid down in Article 1(3) of Directive 2002/58 and thus fall within the scope of the directive.

2. The possibility of derogating from the regime established by Directive 2002/58 in order to create a general data retention obligation

98. It now falls to be determined whether general data retention obligations are consistent with the regime established by Directive 2002/58.

99. The question which therefore arises is whether the Member States are entitled to avail themselves of the option provided by Article 15(1) of Directive 2002/58 in order to impose a general data retention obligation.

100. Four arguments have been put forward against such a possibility, in particular by Open Rights Group and Privacy International.

101. According to the first argument, granting the Member States power to impose general data retention obligations would undermine the harmonisation objective which is the very purpose of Directive 2002/58. Indeed, according to Article 1(1) thereof, that directive provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Union.

102. Article 15(1) of Directive 2002/58, it is alleged, cannot therefore be interpreted as giving the Member States power to adopt a derogation from the regime established by that directive that is so broad as to deprive this endeavour to achieve harmonisation of all practical effect.

103. According to the second argument, the wording of Article 15(1) of Directive 2002/58 also militates against such a broad conception of the Member States’ power to derogate from the regime established by that directive. That provision states that ‘Member States may adopt legislative measures to restrictthe scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of [the] directive’ (my italics).

104. However, a general data retention obligation would not merely ‘restrict the scope’ of the rights and obligations mentioned in that provision, it would in fact nullify them. That applies to:

– the duty to ensure the confidentiality of traffic data and the duty to ensure that the storage of information is subject to the agreement of the user, provided for in Article 5(1) and (3) of Directive 2002/58 respectively;

– the duty to erase traffic data or make it anonymous, provided for in Article 6(1) of that directive; and

– the duty to make location data anonymous or to obtain the consent of the user in order for it to be processed, which is imposed by Article 9(1) of the directive.

105. It seems to me that these first two arguments must be rejected, for the following reasons.

106. First of all, the wording of Article 15(1) of Directive 2002/58 refers to the Member States’ entitlement to adopt ‘legislative measures providing for the retention of data for a limited period’. That express reference to data retention obligations confirms that such obligations are not in themselves inconsistent with the regime established by Directive 2002/58. Although the form of words used does not expressly provide for the possibility of imposing general data retention obligations, it must be observed that it does not preclude that possibility either.

107. Secondly, recital 11 of Directive 2002/58 states that the directive does not alter ‘the existing balance between the individual’s right to privacy and the possibility for Member States to take the measures referred to in Article 15(1) of [the] directive necessary for the protection of public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the enforcement of criminal law’. Consequently, ‘[the] directive does not affect the ability of Member States to carry out lawful interception of electronic communications, or take other measures, if necessary for any of these purposes and in accordance with the [ECHR]’.

108. It follows, in my opinion, from recital 11 that the intention of the EU legislature was not to affect the Member State’s right to adopt the measures referred to in Article 15(1) of Directive 2002/58, but to make that entitlement subject to certain requirements relating, in particular, to the aims pursued and the proportionality of the measures. In other words, general data retention obligations are not, in my view, inconsistent with the regime established by the directive, provided that they satisfy certain conditions.

109. According to the third argument, Article 15(1) of Directive 2002/58 should, as a derogation from the regime established by that directive, be interpreted strictly, in accordance with the rule of interpretation laid down in the consistent case-law of the Court. That requirement of strict interpretation precludes the interpretation of that provision as offering the possibility of adopting a general data retention obligation.

110. To my mind, the option provided for in Article 15(1) of Directive 2002/58 cannot be classified as a derogation, and consequently should not be interpreted strictly, as the Commission has rightly argued. Indeed, I think it difficult to classify that option as a derogation, given that recital 11 of the directive, which I have just mentioned, states that the directive does not affect the Member States’ entitlement to adopt the measures referred to in Article 15(1). I would also point out that Article 15 of the directive is headed ‘Application of certain provisions of Directive [95/46]’, while Article 10 thereof is entitled ‘Exceptions’ (‘Dérogations’ in the French-language version.) Those headings persuade me that the option referred to in Article 15 cannot be classified as a ‘derogation’.

111. According to the fourth and last argument, the fact that a general data retention obligation is inconsistent with the regime established by Directive 2002/58 is borne out by the insertion of a new Article 15(1a) into that directive by Directive 2006/24, which was held to be invalid in Digital Rights Ireland. It is argued that it was this incompatibility that led the EU legislature to declare that Article 15(1) of Directive 2002/58 did not apply to the general retention regime established by Directive 2006/24.

112. This argument appears to me to be based on a misapprehension of the effect of Article 15(1a) of Directive 2002/58. According to that provision, ‘[Article 15(1) of Directive 2002/58] shall not apply to data specifically required by Directive [2006/24] to be retained for the purposes referred to in Article 1(1) of that directive’.

113. My reading of that provision is as follows. In so far as concerns data required to be retained pursuant to Directive 2006/24 for the purposes laid down in that directive, the Member States no longer had the option, provided for in Article 15(1) of Directive 2002/58, to restrict further the scope of the rights and obligations referred to in that provision, in particular by the imposition of additional data retention obligations. In other words, Article 15(1a) provided for exhaustive harmonisation as regards the data required to be retained pursuant to Directive 2006/24 for the purposes laid down in that directive.

114. I find confirmation of that interpretation in recital 12 of Directive 2006/24, which states that ‘Article 15(1) of Directive [2002/58] continues to apply to data, including data relating to unsuccessful call attempts, the retention of which is not specifically required under this Directive and which therefore fall outside the scope thereof, and to retention for purposes, including judicial purposes, other than those covered by this Directive’ (my italics).

115. Thus, the insertion of Article 15(1a) of Directive 2002/58 attests not to the fact that general retention obligations are inconsistent with the regime established by that directive, but to the EU legislature’s intention, when adopting Directive 2006/24, to bring about an exhaustive harmonisation.

116. In light of the foregoing, I consider that general data retention obligations are consistent with the regime established by Directive 2002/58 and that Member States are therefore entitled to avail themselves of the possibility offered by Article 15(1) of that directive in order to impose a general data retention obligation. (20) Recourse to that option is, however, subject to compliance with strict requirements which flow not only from Article 15(1) but also from the relevant provisions of the Charter, read in the light of Digital Rights Ireland, which I shall examine later on. (21)

C –The applicability of the Charter to general data retention obligations

117. Before considering the content of the requirements that are imposed by the Charter, together with Article 15(1) of Directive 2002/58, where a Member State chooses to introduce a general data retention obligation, it is necessary to establish that the Charter is indeed applicable to such an obligation.

118. The applicability of the Charter to general data retention obligations depends essentially on the applicability of Directive 2002/58 to such obligations.

119. Indeed, in accordance with the first sentence of Article 51(1) of the Charter, ‘the provisions of [the] Charter are addressed to the … Member States only when they are implementing Union law’. The explanations relating to Article 51 of the Charter refer, in this connection, to the case-law of the Court of Justice, according to which the obligation to observe the fundamental rights defined in the Union is binding on the Member States only when they are acting within the scope of application of EU law. (22)

120. The Czech, French, Polish and United Kingdom Governments, which dispute the applicability of Directive 2002/58 to general data retention obligations, (23) have also submitted that the Charter is not applicable to such obligations.

121. I have already set out the reasons for which I consider that a general data retention obligation constitutes a measure implementing the option provided for in Article 15(1) of Directive 2002/58. (24)

122. Consequently, I consider that the provisions of the Charter are applicable to national measures introducing such an obligation, in accordance with Article 51(1) of the Charter, as Messrs Watson, Brice and Lewis, Open Rights Group and Privacy International, the Danish, German and Finnish Governments and the Commission have argued. (25)

123. That conclusion is not called into question by the fact that national provisions governing access to retained data do not, as such, fall within the scope of application of the Charter.

124. Admittedly, to the extent that they concern ‘activities of the State in areas of criminal law’, national provisions governing the access of police and judicial authorities to retained data for the purpose of fighting serious crime fall, in my opinion, within the scope of the exclusion laid down in Article 1(3) of Directive 2002/58. (26) Consequently, national provisions of that kind do not implement EU law and the Charter therefore does not apply to them.

125. Nevertheless, the raison d’être of a data retention obligation is to enable law enforcement authorities to access the data retained, and so the issue of the retention of data cannot be entirely separated from the issue of access to that data. As the Commission has rightly emphasised, provisions governing access are of decisive importance when assessing the compatibility with the Charter of provisions introducing a general data retention obligation in implementation of Article 15(1) of Directive 2002/58. More precisely, provisions governing access must be taken into account in the assessment of the necessity and proportionality of such an obligation. (27)

D –The compatibility of a general data retention obligation with the requirements laid down in Article 15(1) of Directive 2002/58 and Articles 7, 8 and 52(1) of the Charter

126. It now remains for me to tackle the difficult question of whether a general data retention obligation is compatible with the requirements laid down in Article 15(1) of Directive 2002/58 and Articles 7, 8 and 52(1) of the Charter, read in the light of Digital Rights Ireland. That question raises the broader issue of the necessary adaptation of existing laws circumscribing the capacity of States to conduct surveillance, a capacity which has increased significantly with recent advancements in technology. (28)

127. The first step in any analysis of this question is a finding of interference with the rights enshrined in Directive 2002/58 and in the fundamental rights enshrined in Articles 7 and 8 of the Charter.

128. General data retention obligations are in fact a serious interference with the right to privacy, enshrined in Article 7 of the Charter, and the right to the protection of personal data guaranteed by Article 8 of the Charter. I think it unnecessary to linger over that conclusion, which was clearly posited by the Court in paragraphs 32 to 37 of Digital Rights Ireland. (29) Equally, general data retention obligations are an interference with several rights enshrined in Directive 2002/58. (30)

129. The second step in the analysis is to establish whether, and if so on what conditions, such a serious interference with the rights enshrined in Directive 2002/58 and in Articles 7 and 8 of the Charter may be justified.

130. Two provisions lay down conditions that must be satisfied in order for this twofold interference to be justified: Article 15(1) of Directive 2002/58, which circumscribes the right of Member States to restrict the scope of certain rights established in that directive, and Article 52(1) of the Charter, read in the light of Digital Rights Ireland, which circumscribes all restrictions on the rights enshrined in the Charter.

131. I would emphasise that those requirements are cumulative. Compliance with the requirements laid down in Article 15(1) of Directive 2002/58 does not in itself mean that the requirements laid down in Article 52(1) of the Charter are also satisfied, and vice versa. (31) Consequently, a general data retention obligation may be regarded as consistent with EU law only if it complies with both the requirements laid down in Article 15(1) of Directive 2002/58 and those laid down in Article 52(1) of the Charter, as the Law Society of England and Wales has emphasised. (32)

132. Together, those two provisions establish six requirements that must be satisfied in order for the interference caused by a general data retention obligation to be justified:

– the retention obligation must have a legal basis;

– it must observe the essence of the rights enshrined in the Charter;

– it must pursue an objective of general interest;

– it must be appropriate for achieving that objective;

– it must be necessary in order to achieve that objective;

– it must be proportionate, within a democratic society, to the pursuit of that same objective.

133. Several of those conditions were mentioned by the Court in Digital Rights Ireland. For the sake of clarity and given the facts which distinguish the present cases from Digital Rights Ireland, I would nevertheless like to revisit each of them and examine in greater detail the requirements concerning the legal basis for, and the necessity and proportionality within a democratic society of general data retention obligations.

1. The requirement for a legal basis in national law

134. Both Article 52(1) of the Charter and Article 15(1) of Directive 2002/58 lay down requirements concerning the legal basis to which Member States must have recourse when imposing a general data retention obligation.

135. First of all, any limitation on the exercise of the rights recognised by the Charter must, in accordance with Article 52(1) of the Charter, be ‘provided for by law’. That requirement was not formally examined by the Court in Digital Rights Ireland,a case which concerned interference pursuant to a directive.

136. Until its recent judgment in WebMindLicenses, (33) the Court had never given a ruling on the precise scope of this requirement, not even on those occasions when it expressly held that the requirement had been satisfied (34) or had not been satisfied. (35) In paragraph 81 of the aforementioned judgment, the Third Chamber of the Court stated as follows:

‘In that regard, the requirement that any limitation on the exercise of that right must be provided for by law implies that the legal basis which permits the tax authorities to use the evidence referred to in the preceding paragraph must be sufficiently clear and precise and that, by defining itself the scope of the limitation on the exercise of the right guaranteed by Article 7 of the Charter, it affords a measure of legal protection against any arbitrary interferences by those authorities (see, inter alia, European Court of Human Rights, Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82, and Gillan and Quinton v. the United Kingdom, 12 January 2010, no. 4158/05, § 77, ECHR 2010).’

137. I would invite the Grand Chamber of the Court to confirm that interpretation in the present cases, for the following reasons.

138. As Advocate General Cruz Villalón rightly pointed out in his Opinion in Scarlet Extended, (36) the European Court of Human Rights had developed a substantial body of case-law on this requirement, with reference to the ECHR, according to which the term ‘law’ must be understood in the substantive, rather than the formal sense of the term. (37)

139. According to that body of case-law, the expression ‘provided for by law’ means that the legal basis must be adequately accessible and foreseeable, that is to say, formulated with sufficient precision to enable the individual — if need be with appropriate advice — to regulate his conduct. The legal basis must also provide adequate protection against arbitrary interference and, consequently, must define with sufficient clarity the scope and manner of exercise of the power conferred on the competent authorities (the principle of the supremacy of the law). (38)

140. In my view, the meaning of that expression ‘provided for by law’ used in Article 52(1) of the Charter needs to be the same as that ascribed to it in connection with the ECHR, for the following reasons.

141. First of all, pursuant to Article 53 of the Charter and the explanations relating to that provision, the level of protection afforded by the Charter must never be inferior to that guaranteed by the ECHR. This rule that the ‘ECHR standard’ must be attained means that the Court’s interpretation of the expression ‘provided for by law’ used in Article 52(1) of the Charter must be at least as stringent as that given to it by the European Court of Human Rights in connection with the ECHR. (39)

142. Secondly, in view of the horizontal nature of this requirement for a legal basis, which applies to a variety of types of interference, with reference both to the Charter and to the ECHR, (40) it would be inappropriate to impose different criteria on the Member States depending on which of those two instruments was under consideration. (41)

143. I therefore think that, as the Estonian Government and the Commission have argued, the expression ‘provided for by law’ used in Article 52(1) of the Charter must, in light of the case-law of the European Court of Human Rights referred to in point 139 above, be interpreted as meaning that general data retention obligations such as those at issue in the main proceedings must be founded on a legal basis that is adequately accessible and foreseeable and provides adequate protection against arbitrary interference.

144. Secondly, it is necessary to determine the content of the requirements laid down by Article 15(1) of Directive 2002/58 concerning the legal basis to which Member States must have recourse if they wish to avail themselves of the possibility offered by that provision.

145. I must, in this connection, point to certain differences between the various language versions of the first sentence of Article 15(1).

146. In the English (‘legislative measures’), French (‘mesures législatives’), Italian (‘disposizioni legislative’), Portuguese (‘medidas legislativas’), Romanian (‘măsuri legislative’) and Swedish versions (‘genom lagstiftning vidta åtgärder’), the first sentence of Article 15(1) of Directive 2002/58 refers, in my opinion, to the adoption of measures emanating from a legislative authority.

147. On the other hand, the Danish (‘retsforskrifter), German (‘Rechtsvorschriften’), Dutch (‘wettelijke maatregele’) and Spanish versions (‘medidas legales’) of that sentence may be interpreted as calling for the adoption either of measures emanating from a legislative authority or of regulatory measures emanating from an executive authority.

148. It is settled case-law that the need for uniform application and, accordingly, for uniform interpretation of a European Union measure makes it impossible to consider one version of the text in isolation, but requires that the measure be interpreted on the basis of both the real intention of its author and the aim the latter seeks to achieve, in the light, in particular, of the versions existing in all the other official languages. Where there is divergence between the various language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part. (42)

149. In this instance, Article 15(1) of Directive 2002/58 governs the option available to the Member States of derogating from the fundamental rights enshrined in Articles 7 and 8 of the Charter, the protection of which is implemented in the directive. I therefore regard it as appropriate to interpret the requirement for a legal basis imposed by Article 15(1) of Directive 2002/58 in the light of the Charter, and in particular Article 52(1) thereof.

150. Accordingly, it is imperative that the ‘measures’ required by Article 15(1) of Directive 2002/58 have the characteristics to which I referred in point 143 of this Opinion, namely accessibility and foreseeability and providing adequate protection against arbitrary interference. It follows from those characteristics, and in particular from the requirement for adequate protection against arbitrary interference, that the measures must be binding on the national authorities upon which the power to access the retained data is conferred. It would not be sufficient, for example, if the safeguards surrounding access to data were provided for in codes of practice or internal guidelines having no binding effect, as the Law Society of England and Wales has rightly pointed out.

151. Moreover, the words ‘Member States may adopt … measures’, which are common to all the language versions of the first sentence of Article 15(1) of Directive 2002/58, seem to me to exclude the possibility of national case-law, even settled case-law, providing a sufficient legal basis for the implementation of that provision. I would emphasise that, in this respect, the provision is more stringent than the requirements arising from the case-law of the European Court of Human Rights. (43)

152. I would add that, given the seriousness of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter that a general data retention obligation entails, it would appear desirable for the essential content of the regime in question, and in particular the safeguards surrounding the obligation, to be laid down in a measure adopted by the legislative authority and to leave the executive authority with responsibility for the detailed rules governing its implementation.

153. Having regard to the foregoing, I consider that Article 15(1) of Directive 2002/58 and Article 52(1) of the Charter must be interpreted as meaning that a regime establishing a general data retention obligation, such as those at issue in the main proceedings, must be established in legislative or regulatory measures possessing the characteristics of accessibility, foreseeability and adequate protection against arbitrary interference.

154. It is for the referring courts, which are in a privileged position to evaluate their respective national regimes, to verify compliance with that requirement.

2. Observance of the essence of the rights enshrined in Articles 7 and 8 of the Charter

155. Article 52(1) of the Charter provides that any limitation on the exercise of the rights recognised by the Charter must ‘respect the essence of those rights and freedoms’. (44) That aspect, which the Court examined in paragraphs 39 and 40 of Digital Rights Ireland, with reference to Directive 2006/24, does not seem to me to raise any particular problem in the context of the present cases, as the Spanish and Irish Governments and the Commission have submitted.

156. In paragraph 39 of Digital Rights Ireland, the Court held that Directive 2006/24 did not adversely affect the essence of the right to privacy or of the other rights enshrined in Article 7 of the Charter, since it did not permit the acquisition of knowledge of the content of the electronic communications as such.

157. In my view, that finding could equally apply to the national regimes at issue in the main proceedings, since they also do not permit the acquisition of knowledge of the content of the electronic communications as such. (45)

158. In paragraph 40 of Digital Rights Ireland, the Court held that Directive 2006/24 did not adversely affect the essence of the fundamental right to the protection of personal data enshrined in Article 8 of the Charter, given the principles of data protection and data security that had to be observed by service providers pursuant to Article 7 of that directive, with the Member States being responsible for ensuring that appropriate technical and organisational measures were adopted against accidental or unlawful destruction and accidental loss or alteration of the data.

159. Again, I consider that that finding could equally apply to the national regimes at issue in the main proceedings, since they too, it seems to me, provide for comparable safeguards in so far as concerns the protection and security of the data retained by service providers, inasmuch as those safeguards must effectively protect personal data against the risk of abuse and against any unlawful access and use of that data. (46)

160. It is nevertheless for the referring courts to verify, in the light of the foregoing considerations, whether the national regimes at issue in the main proceedings do indeed observe the essence of the rights recognised in Articles 7 and 8 of the Charter.

3. The existence of an objective of general interest recognised by the European Union that is capable of justifying a general data retention obligation

161. Both Article 15(1) of Directive 2002/58 and Article 52(1) of the Charter require that any interference with the rights enshrined in those instruments should be in the pursuit of an objective in the general interest.

162. In paragraphs 41 to 44 of Digital Rights Ireland, the Court held that the general data retention obligation imposed by Directive 2006/24 contributed ‘to the fight against serious crime and thus, ultimately, to public security’ and that the fight against serious crime was an objective of general interest to the European Union.

163. Indeed, it is clear from the case-law of the Court that the fight against international terrorism in order to maintain international peace and security constitutes an objective of general interest to the Union. The same may be said of the fight against serious crime in order to ensure public security. Furthermore, it should be noted, in this connection, that Article 6 of the Charter lays down the right of any person not only to liberty, but also to security. (47)

164. That observation applies equally to the general data retention obligations at issue in the main proceedings, which are liable to be justified by the objective of fighting serious crime.

165. Nevertheless, having regard to some of the arguments submitted to the Court, it is necessary to determine whether such an obligation may also be justified by an objective in the general interest other than the fight against serious crime.

166. Article 52(1) of the Charter makes a general reference to ‘objectives of general interest recognised by the Union’ and to ‘the need to protect the rights and freedoms of others’.

167. The wording of Article 15(1) of Directive 2002/58 is more precise regarding the objectives which may justify interference with the rights laid down in that directive. In accordance with that provision, the measures in question must contribute to ‘[safeguarding] national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of [Directive 95/46]’.

168. In addition, it its judgment in Promusicae, (48) the Court held that that provision had to be interpreted in the light of Article 13(1) of Directive 95/46, which authorises derogations from the rights provided for in that directive when they are justified by ‘the protection of the rights and freedoms of others’. Consequently, the Court held that Article 15(1) of Directive 2002/58 offered Member States the possibility of laying down an obligation, for service providers, to disclose personal data so that it could be established, in the context of civil proceedings, whether there has been an infringement of copyright in musical or audiovisual recordings.

169. The United Kingdom Government has drawn from that judgment the argument that a general data retention obligation may be justified by any of the objectives mentioned in either Article 15(1) of Directive 2002/58 or Article 13(1) of Directive 95/46. According to that government, such an obligation could be justified by the utility of retained data in combating ‘ordinary’ (as opposed to ‘serious’) offences, or even in proceedings other than criminal proceedings, with regard to the objectives mentioned in those provisions.

171. First of all, as Mr Watson and Open Rights Group and Privacy International have emphasised, the approach adopted by the Court in Promusicae (49) is not relevant to the present cases, since that case concerned a request made by an organisation representing copyright holders for access to data retained spontaneously by a service provider, namely Telefónica de España. In other words, that judgment did not address the question of what objectives were capable of justifying the serious interference with fundamental rights which general data retention obligations, such as those at issue in the main proceedings, entail.

172. Secondly, I think that the requirement of proportionality within a democratic society prevents the combating of ordinary offences and the smooth conduct of proceedings other than criminal proceedings from constituting justifications for a general data retention obligation. The considerable risks that such obligations entail outweigh the benefits they offer in combating ordinary offences and in the conduct of proceedings other than criminal proceedings. (50)

173. In light of the foregoing, I consider that Article 15(1) of Directive 2002/58 and Article 52(1) of the Charter must be interpreted as meaning that the fight against serious crime is an objective in the general interest that is capable of justifying a general data retention obligation, whereas combating ordinary offences and the smooth conduct of proceedings other than criminal proceedings are not.

174. Consequently, it is necessary to assess the appropriateness, necessity and proportionality of such obligations with reference to the objective of fighting serious crime.

4. The appropriateness of general data retention obligations with regard to the fight against serious crime

175. The requirements of appropriateness, necessity (51) and proportionality (52) flow from both Article 15(1) of Directive 2002/58 and Article 52(1) of the Charter.

176. In accordance with the first of those requirements, general data retention obligations, such as those at issue in the main proceedings, must be liable to contribute to the objective of general interest that I have just identified, namely the fight against serious crime.

177. This requirement poses no particular difficulty in the present cases. Indeed, as the Court stated, in substance, in paragraph 49 of Digital Rights Ireland, the data retained provide the national authorities having competence in criminal matters with an additional means of investigation to prevent or shed light on serious crime. Consequently, such obligations contribute to the fight against serious crime.

178. I would nevertheless like to be clear about the usefulness of general data retention obligations in the fight against serious crime. As the French Government has rightly pointed out, such obligations, by contrast with targeted surveillance measures, enable law enforcement authorities to ‘examine the past’, so to speak, by consulting retained data.

179. Targeted surveillance measures are focused on persons who have already been identified as being potentially connected, even indirectly or remotely, with a serious crime. Such targeted measures enable the competent authorities to access data relating to communications effected by such persons, and even to access the content of their communications. However, that access will be limited only to communications effected after the persons have been identified.

180. General data retention obligations, on the other hand, relate to all communications effected by all users, without requiring any connection whatsoever with a serious crime. Such obligations enable competent authorities to access the communications history of persons who have not yet been identified as being potentially connected with a serious crime. It is in this sense that general data retention obligations give law enforcement authorities a certain ability to examine the past, allowing them to access communications effected by such persons before they have been so identified. (53)

181. In other words, the usefulness of general data retention obligations in the fight against serious crime lies in this limited ability to examine the past by consulting data that retraces the history of communications effected by persons even before they are suspected of being connected with a serious crime. (54)

182. When presenting the proposal for a directive which led to the adoption of Directive 2006/24, the Commission illustrated this usefulness by giving several specific examples of investigations into terrorism, murder, kidnapping and child pornography. (55)

183. Several similar examples have been given to the Court in the present cases, in particular by the French Government, which has emphasised the positive obligation which Member States are under to ensure the security of persons within their territory. According to that government, in the investigations aimed at dismantling the networks which organise the departure of French residents to conflict zones in Iraq and Syria, access to retained data plays a crucial role in identifying the people who facilitate those departures. The French Government adds that access to the communications data of persons who were involved in the recent terrorist attacks of January and November 2015 in France was extremely useful in helping the investigators discover the authors of those attacks and their accomplices. Similarly, in the search for missing persons, data relating to the location of such persons when effecting communications prior to their disappearance can play a crucial role in the investigation.

184. In light of the foregoing considerations, I think that general data retention obligations are liable to contribute to the fight against serious crime. It nevertheless remains to be verified whether such obligations are both necessary in order to achieve that objective and proportionate to the pursuit of that objective.

5. The necessity of general data retention obligations in the fight against serious crime

185. It is settled case-law that a measure may be regarded as necessary only if no other measures exist that would be equally appropriate and less restrictive. (56)

186. The requirement of appropriateness calls for an evaluation of the ‘absolute’ effectiveness — independently of any other possible measures — of a general data retention obligation in the fight against serious crime. The requirement of necessity calls for an assessment of the efficiency — or ‘relative’ effectiveness of that obligation, that is to say, in comparison with all other possible measures. (57)

187. In the present cases, the test of necessity demands an assessment of whether other measures could be as effective as a general data retention obligation in the fight against serious crime and whether such other measures would interfere to a lesser extent with the rights enshrined in Directive 2002/58 and Articles 7 and 8 of the Charter. (58)

188. I would also recall the settled case-law, referred to in paragraph 52 of Digital Rights Ireland, according to which the protection of the fundamental right to privacy requires that derogations and limitations in relation to the protection of personal data must apply only in so far as is ‘strictly necessary’. (59)

189. Two issues relating to the requirement of strict necessity in the context of the present cases have been extensively debated by the parties that have submitted observations to the Court. They correspond, in substance, to the two questions referred by the national court in Case C‑203/15:

– first, in the light of paragraphs 56 to 59 of Digital Rights Ireland, should a general data retention obligation be regarded as, in itself, going beyond the bounds of what is strictly necessary for the purposes of fighting serious crime, irrespectively of any safeguards that might accompany such an obligation?

– secondly, assuming that such an obligation may be regarded as not, in itself, going beyond the bounds of what is strictly necessary, must it be accompanied by all of the safeguards mentioned by the Court in paragraphs 60 to 68 of Digital Rights Ireland, so as to limit the interference with the rights enshrined in Directive 2002/58 and Articles 7 and 8 of the Charter to what is strictly necessary?

190. Before addressing those issues, I think it appropriate to dismiss an argument put forward by the United Kingdom Government, according to which the criteria established in Digital Rights Ireland are irrelevant to the present cases because that case concerned not a national regime but a regime established by the EU legislature.

191. I would emphasise in this connection that, in Digital Rights Ireland, the Court interpreted Articles 7, 8 and 52(1) of the Charter and that those provisions are also the subject of the questions raised here in the main proceedings. In my opinion, it is not possible to interpret the provisions of the Charter differently depending on whether the regime under consideration was established at EU level or at national level, as Messrs Brice and Lewis and the Law Society of England and Wales have rightly emphasised. Once it has been established that the Charter is applicable, as it has been established in the present cases, (60) it must be applied in the same fashion regardless of the regime under consideration. Therefore, the criteria identified by the Court in Digital Rights Ireland are relevant in the assessment of the national regimes at issue in the present cases, as the Danish and Irish Governments and the Commission in particular have argued.

(a) The strict necessity of general data retention obligations

192. According to one view, propounded by Tele2 Sverige, Open Rights Group and Privacy International, general data retention obligations must, following Digital Rights Ireland, be regarded as, in themselves, going beyond the bounds of what is strictly necessary for the purposes of fighting serious crime, irrespectively of any safeguards that might accompany such obligations.

193. According to the other view, propounded by the majority of the parties that have submitted observations to the Court, such obligations do not go beyond the bounds of what is strictly necessary, provided that they are accompanied by certain safeguards concerning access to the data, the period of retention and the protection and security of the data.

195. First of all, my reading of Digital Rights Ireland is that the Court held that a general data retention obligation goes beyond the bounds of what is strictly necessary where it is not accompanied by stringent safeguards concerning access to the data, the period of retention and the protection and security of the data. On the other hand, the Court did not rule on the compatibility with EU law of general data retention obligations which are accompanied by such safeguards, inasmuch as that type of regime was not the subject of the questions referred to the Court in that case.

196. I would emphasise in this connection that paragraphs 56 to 59 of Digital Rights Ireland contain no statement from the Court to the effect that general data retention obligations in themselves go beyond what is strictly necessary.

197. In paragraphs 56 and 57 of that judgment, the Court noted that the retention obligation provided for by Directive 2006/24 covered all means of electronic communication, all users and all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting serious crime.

198. In paragraphs 58 and 59 of the judgment, the Court described in greater detail the practical implications of this absence of differentiation. First, the retention obligation even concerned persons for whom there was no evidence to suggest that their conduct might have a link, even an indirect or remote one, with serious crime. Secondly, the directive did not require any relationship between the data whose retention was provided for and a threat to public security and, in particular, was not restricted to a retention in relation to data pertaining to a particular time period and/or a particular geographical area and/or to a circle of particular persons likely to be involved, in one way or another, in a serious crime.

199. The Court therefore noted that general data retention obligations are characterised by their lack of differentiation by reference to the objective of fighting serious crime. It did not, however, hold that that absence of differentiation meant that such obligations, in themselves, went beyond what was strictly necessary.

200. In reality, it was only after completing its examination of the regime established by Directive 2006/24 and after noting the absence of certain safeguards — which I shall come on to consider — (61) that the Court held, in paragraph 69 of Digital Rights Ireland:

‘Having regard to all the foregoing considerations, it must be held that, by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter’ (my italics).

201. As the German and Netherlands Governments have argued, if a generalised data retention had, in and of itself, been sufficient to render Directive 2006/24 invalid, there would have been no need for the Court to examine — as it did, in detail — the absence of the safeguards mentioned in paragraphs 60 to 68 of that judgment.

202. Therefore, the general data retention obligation provided for by Directive 2006/24 did not, in itself, go beyond what was strictly necessary. That directive went beyond what was strictly necessary as a result of the combined effect of the generalised retention of data and the lack of safeguards aimed at limiting to what was strictly necessary the interference with the rights enshrined in Articles 7 and 8 of the Charter. Because of that combined effect, it was necessary to declare the directive invalid in its entirety. (62)

203. Secondly, I find confirmation for this interpretation in paragraph 93 of the judgment in Schrems, (63) which reads as follows:

‘Legislation is not limited to what is strictly necessary where it authorises, on a generalised basis, storage of all the personal data of all the persons whose data has been transferred from the European Union to the United States without any differentiation, limitation or exception being made in the light of the objective pursued and without an objective criterion being laid down by which to determine the limits of the access of the public authorities to the data, and of its subsequent use, for purposes which are specific, strictly restricted and capable of justifying the interference which both access to that data and its use entail (see, to this effect, concerning Directive [2006/24, Digital Rights Ireland], paragraphs 57 to 61)’ (my italics).

204. Again, the Court did not find that the regime at issue in that case went beyond the bounds of what was strictly necessary for the sole reason that it authorised the generalised retention of personal data. In that case, the bounds of what was strictly necessary had been overstepped because of the combined effect of the possibility of such generalised retention and the lack of a safeguard in relation to access aimed at reducing the interference to what was strictly necessary.

205. I infer from the foregoing that a general data retention obligation need not invariably be regarded as, in itself, going beyond the bounds of what is strictly necessary for the purposes of fighting serious crime. However, such an obligation will invariably go beyond the bounds of what is strictly necessary if it is not accompanied by safeguards concerning access to the data, the retention period and the protection and security of the data.

206. Thirdly, my feeling in this regard is corroborated by the need to verify, specifically, whether the requirement of strict necessity in the context of the national regimes at issue in the main proceedings has been observed.

207. As I stated in point 187 of this Opinion, the requirement of strict necessity calls for an assessment of whether other measures could be as effective as a general data retention obligation in the fight against serious crime, while at the same time interfering to a lesser extent with the rights enshrined in Directive 2002/58 and Articles 7 and 8 of the Charter.

208. That assessment must be carried out in the specific context of each national regime providing for a general data retention obligation. Moreover, it requires a comparison to be made between the effectiveness of such an obligation and that of any other possible national measure, with account being taken of the fact that such obligations give the competent authorities a certain ability to examine the past by consulting the data. (64)

209. Given the requirement of strict necessity, it is imperative that national courts do not simply verify the mere utility of general data retention obligations, but rigorously verify that no other measure or combination of measures, such as a targeted data retention obligation accompanied by other investigatory tools, can be as effectiveness in the fight against serious crime. I would emphasise in this connection that several studies that have been brought to the Court’s attention call into question the necessity of this type of obligation in the fight against serious crime. (65)

210. Moreover, assuming that other alternative measures could be as effective in the fight against serious crime, it will still remain for the referring courts, in accordance with the settled case-law referred to in point 185 of this Opinion, to determine whether those other measures would interfere with the fundamental rights at issue to a lesser extent than a general data retention obligation.

211. In the light of paragraph 59 of Digital Rights Ireland, it falls to the national courts to consider, in particular, whether it would be possible to limit the substantive scope of a retention obligation while at the same time preserving the effectiveness of such a measure in the fight against serious crime. (66) Retention obligations may indeed have a greater or lesser substantive scope, depending on the users, geographic area and means of communication covered. (67)

212. To my mind, it would be desirable, if the technology allowed, to exclude from the retention obligation data that is particularly sensitive in terms of the fundamental rights at issue in the main proceedings, such as data that is subject to professional privilege or data which makes it possible to identify a journalist’s source.

213. Nevertheless, it is important to bear in mind that any substantial limitation of the scope of a general data retention obligation may considerably reduce the utility of such a regime in the fight against serious crime. For one reason, as several governments have emphasised, it is difficult, not to say impossible, to determine in advance what data may be connected with a serious crime. Therefore such a limitation could result in the exclusion from retention of data that might have proved relevant in the fight against serious crime.

214. For another reason, as the Estonian Government has pointed out, serious crime is an evolving phenomenon, one that is capable of adapting to the investigatory tools at the disposal of law enforcement authorities. Thus, a limitation to a particular geographic area or to a particular means of communication could result in the shifting of activities relating to serious crime to a geographic area and/or a means of communication not covered by the regime.

215. Since it calls for a complex appraisal of the national regimes at issue in the main proceedings, I consider that this assessment (of whether other measures could be as effective) must be carried out by the national courts, as the Czech, Estonian, Irish, French and Netherlands Governments and the Commission have emphasised.

(b) The mandatory nature of the safeguards described by the Court in paragraphs 60 to 68 of Digital Rights Ireland in the light of the requirement of strict necessity

216. Assuming that a general data retention obligation may be regarded as strictly necessary in the context of the national regime in question, which is a matter for the national court to establish, it must still be determined whether that obligation must be accompanied by all the safeguards described by the Court in paragraphs 60 to 68 of Digital Rights Ireland, with a view to limiting the interference with the rights enshrined in Directive 2002/58 and Articles 7 and 8 of the Charter to what is strictly necessary.

217. The safeguards described concern the rules governing access to and use of the retained data by the competent authorities (paragraphs 60 to 62 of Digital Rights Ireland), the data retention period (paragraphs 63 and 64 of Digital Rights Ireland) and the security and protection of the data retained by service providers (paragraphs 66 to 68 of Digital Rights Ireland).

218. In the observations that have been submitted to the Court, two opposing views have been put forward on the nature of these safeguards.

219. According to the first view, propounded by Messrs Watson, Brice and Lewis, Open Rights Group and Privacy International, the safeguards described by the Court in paragraphs 60 to 68 of Digital Rights Ireland are mandatory. According to this view, the Court established minimum safeguards that must all be present under the national regime in question so as to limit the interference with fundamental rights to what is strictly necessary.

220. According to the second view, propounded by the German, Estonian, Irish, French and United Kingdom Governments, the safeguards described by the Court in paragraphs 60 to 68 of Digital Rights Ireland are merely illustrative. The Court gave an ‘overall assessment’ of the safeguards that were absent from the regime provided for by Directive 2006/24, but none of those safeguards, taken in isolation, may be regarded as mandatory in the light of the requirement of strict necessity. To illustrate this view, the German Government has suggested the metaphor of ‘communicating vessels’: a more flexible approach to one of the three aspects identified by the Court (such as access to the retained data) may be compensated by a stricter approach to the other two aspects (the retention period and the security and protection of the data).

221. I am convinced that this ‘communicating vessels’ argument must be rejected and that all the safeguards described by the Court in paragraphs 60 to 68 of Digital Rights Ireland must be regarded as mandatory, for the following reasons.

222. First of all, the language used by the Court in its examination of the strict necessity of the regime laid down by Directive 2006/24 does not lend itself to such an interpretation. In particular, the Court made no allusion, in paragraphs 60 to 68 of the judgment, to any possibility of ‘compensating’ a more flexible approach to one of the three aspects it identified by a stricter approach to the remaining two.

223. It seems to me that, in reality, the ‘communicating vessels’ argument arises from confusion between the requirement of necessity and the requirement of proportionality stricto sensu, which the Court did not consider in Digital Rights Ireland.As I indicated in point 186 of this Opinion, the requirement of necessity implies the rejection of any measure that is inefficient. In that context there can be no question of any ‘overall assessment’, or of ‘compensation’ or of ‘weighing up’, which come into play only when proportionality stricto sensu is assessed. (68)

224. Secondly, this ‘communicating vessels’ argument would deprive the safeguards described by the Court in paragraphs 60 to 68 of Digital Rights Ireland of any practical effect, such that persons whose data have been retained would no longer have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data, as is necessary, according to paragraph 54 of that judgment.

225. The pernicious effect of the ‘communicating vessels’ argument may be easily illustrated by the following examples. A national regime that rigorously restricts access to the service of the fight against terrorism and limits the retention period to three months (representing a strict approach to access and retention period), but does not require service providers to retain the data, in encrypted form, within the national territory (representing a flexible approach to security), would expose the entire population to a significant risk of the retained data being accessed unlawfully. Similarly, a national regime that provided for a retention period of three months and the retention of the data in encrypted form within the national territory (representing a strict approach to retention period and security), but which allowed all employees of all public authorities access to the retained data (representing a flexible approach to access) would expose the entire population to a significant risk of abuse on the part of the national authorities.

226. To my mind, those examples show that, in order to preserve the practical effect of the safeguards described by the Court in paragraphs 60 to 68 of Digital Rights Ireland, each of those safeguards must be regarded as mandatory. The European Court of Human Rights also emphasised the fundamental importance of these safeguards in its recent judgment in Szabó and Vissy v. Hungary, making express reference to Digital Rights Ireland. (69)

227. Thirdly, the implementation of these safeguards by those Member States that wish to impose a general data retention obligation would not seem to me to pose any major practical difficulties. In reality, these safeguards seem to me in many respects quite ‘minimal’, as Mr Watson has argued.

228. A number of these safeguards have been debated before the Court because of their possible absence from the national regimes at issue in the main proceedings.

229. First, it is clear from paragraphs 61 and 62 of Digital Rights Ireland that access to and the subsequent use of the retained data must be strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating thereto.

230. According to Tele2 Sverige and the Commission, that requirement is not satisfied by the Swedish regime at issue in Case C‑203/15, which allows the retained data to be accessed for the purpose of combating ordinary offences. A similar criticism has been levelled by Messrs Brice, Lewis and Watson against the United Kingdom regime at issue in Case C‑698/15, which authorises access for the purpose of combating ordinary offences, and even in the absence of any offence.

231. Whilst it is not for this Court to reach a finding on the content of those national regimes, it falls within its remit to identify the objectives in the general interest that are capable of justifying serious interference with the rights enshrined in the directive and in Articles 7 and 8 of the Charter. I have already set out the reasons for which I consider that only the fight against serious crime is capable of justifying such interference. (70)

232. Secondly, according to paragraph 62 of Digital Rights Ireland, access to the data retained must be made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary for the purpose of attaining the objective pursued. That prior review must also intervene following a reasoned request of the competent national authorities submitted within the framework of procedures of prevention, detection or criminal prosecutions.

233. According to the observations of Tele2 Sverige and the Commission, that safeguard of an independent review preceding access is partly absent from the Swedish regime at issue in Case C‑203/15. The same observation, the veracity of which has not been disputed by the United Kingdom Government, has been made by Messrs Brice, Lewis and Watson and by Open Rights Group and Privacy International with regard to the United Kingdom regime at issue in Case C‑698/15.

234. I see no reason to take a flexible attitude to this requirement for prior review by an independent body, which indisputably emerges from the language used by the Court in paragraph 62 of Digital Rights Ireland. (71) First of all, such a requirement is dictated by the severity of the interference and of the risks engendered by the establishment of databases covering practically the whole of the population in question. (72) I would note that several experts in the protection of human rights while countering terrorism have criticised the current trend of replacing traditional independent authorisation procedures and effective oversight with ‘self-authorisation’ systems for giving intelligence and police services access to data. (73)

235. Next, independent review preceding access to data is necessary so that data that is particularly sensitive in terms of the fundamental rights at issue in the main proceedings, such as data that is subject to professional privilege or data which makes it possible to identify a journalist’s source, may be dealt with on a case-by-case basis, as indeed the Law Society of England and Wales and the French and German Governments have pointed out. Review preceding access is all the more necessary where it is technically difficult to exclude all data of this kind from retention. (74)

236. Lastly, I would add that, from a practical point of view, none of the three parties concerned by a request for access is in a position to carry out an effective review in connection with access to the retained data. Competent law enforcement authorities have every interest in requesting the broadest possible access. Service providers, who will be ignorant of the content of any investigation file, are incapable of checking that requests for access are limited to what is strictly necessary and persons whose data are consulted have no way of knowing that they are under investigation, even if their data is used abusively or unlawfully, as Messrs Watson, Brice and Lewis have emphasised. Given the nature of the various interests involved, the intervention of an independent body prior to the consultation of retained data, with a view to protecting persons whose data are retained from abusive access by the competent authorities, is to my mind imperative.

237. Having said that, it seems reasonable to me to consider that, in specific situations of extreme urgency, such as the United Kingdom Government has referred to, there may be justification for law enforcement authorities to have immediate access to retained data, without any prior review, in order to prevent the commission of a serious crime or so that the perpetrators can be prosecuted. (75) As far as possible, it is vital that the requirement for prior authorisation be maintained and an emergency procedure introduced within the independent authority in order to deal with this type of request for access. Nevertheless, if it appears that making an application for access to an independent body is incompatible with the extreme urgency of the situation, there must be an ex post facto review by that body of access to and use of the data and it must be carried out as swiftly as possible.

238. Thirdly, in paragraph 68 of Digital Rights Ireland, the Court established that service providers are under an obligation to retain data within the European Union, in order to facilitate the review, required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security referred to in paragraphs 66 and 67 of that judgment.

239. Tele2 Sverige and the Commission have argued that the retention of data within the national territory is not guaranteed under the Swedish regime at issue in Case C‑203/15. The same criticism has been levelled by Messrs Brice, Lewis and Watson against the United Kingdom regime at issue in Case C‑698/15.

240. On this point, first of all, I see no reason to attenuate this requirement, established in paragraph 68 of Digital Rights Ireland, since, if data is retained outside the European Union, the level of protection offered by Directive 2002/58 and Articles 7, 8 and 52(1) of the Charter cannot be ensured for persons whose data are retained. (76)

241. Secondly, it seems reasonable to me to transpose this requirement, which the Court expressed with reference to Directive 2006/24, to national regimes and to provide for the retention of data within the national territory, as the German and French Governments and the Commission have submitted. Indeed, in accordance with Article 8(3) of the Charter, every Member State must ensure that an independent authority reviews compliance with the requirements of protection and security on the part of the service providers to which their national regimes apply. In the absence of coordination throughout the European Union, however, those national authorities might find it impossible to fulfil their supervisory duties in other Member States.

242. Fourthly, in so far as the retention period is concerned, the referring courts must apply the criteria defined by the Court in paragraphs 63 and 64 of Digital Rights Ireland. They must determine whether the retained data may be distinguished on the basis of their usefulness and, if so, whether the retention period is adjusted on the basis of that criterion. The referring courts must also check whether the retention period is based on objective criteria such that it may be ensured that it is limited to what is strictly necessary.

243. I would emphasise that, in its recent judgment in Roman Zakharov v. Russia, the European Court of Human Rights held a maximum retention period of six months to be reasonable, while at the same time deploring the lack of any requirement to destroy immediately any data that are not relevant to the purpose for which they have been obtained. (77) I would add, in this connection, that the national regimes at issue in the main proceedings must lay down an obligation to destroy definitively any retained data once it is no longer strictly necessary in the fight against serious crime. That obligation must be observed not only by service providers that retain data, but also by the authorities that have accessed the retained data.

244. Having regard to the foregoing considerations, I consider that all the guarantees described by the Court in paragraphs 60 to 68 of Digital Rights Ireland are mandatory and consequently must accompany any general data retention obligation in order to limit the interference with the rights enshrined in Directive 2002/58 and Articles 7 and 8 of the Charter to what is strictly necessary.

245. It is for the referring courts to check that the national regimes at issue in the main proceedings include each of these safeguards.

6. The proportionality, within a democratic society, of a general data retention obligation in the light of the fight against serious crime

246. Having verified the necessity of the national regimes at issue in the main proceedings, it will still remain for the referring courts to verify their proportionality, within a democratic society, with reference to the fight against serious crime. This aspect was not examined by the Court in Digital Rights Ireland, since the regime established by Directive 2006/24 went beyond the bounds of what was strictly necessary for the purposes of fighting serious crime.

247. This requirement of proportionality within a democratic society — or proportionality stricto sensu — flows both from Article 15(1) of Directive 2002/58 and Article 52(1) of the Charter, as well as from settled case-law: it has been consistently held that a measure which interferes with fundamental rights may be regarded as proportionate only if the disadvantages caused are not disproportionate to the aims pursued. (78)

248. By contrast with the requirements relating to the appropriateness and necessity of the measure in question, which call for an evaluation of the measure’s effectiveness in terms of the objective pursued, the requirement of proportionality stricto sensu implies weighing the advantages resulting from the measure in terms of the legitimate objective pursued against the disadvantages it causes in terms of the fundamental rights enshrined in a democratic society. (79) This particular requirement therefore opens a debate about the values that must prevail in a democratic society and, ultimately, about what kind of society we wish to live in. (80)

249. Consequently, as I indicated in point 223 of this Opinion, it is at the stage when proportionality in the strict sense is considered that it becomes necessary to conduct an overall assessment of the regime in question, and not when the necessity of that measure is examined, as the partisans of the ‘communicating vessels’ theory have argued. (81)

250. In accordance with the case-law referred to in point 247 of this Opinion, it is necessary to weigh in the balance the advantages and disadvantages, in a democratic society, of general data retention obligations. These advantages and disadvantages are intimately linked to the essential characteristic of such obligations — of which they reflect the positive and negative aspects — which is that they relate to all communications effected by all users irrespectively of any connection whatsoever with a serious crime.

251. I have already set out, in points 178 to 183 of this Opinion, the advantages which the retention of data relating to all communications effected within the national territory procure in the fight against serious crime.

252. The disadvantages of general data retention obligations arise from the fact that the vast majority of the data retained will relate to persons who will never be connected in any way with serious crime. It is important, in this connection, to clarify the nature of the disadvantages which those people will suffer. They are, in fact, different in nature depending on the degree of interference in the fundamental rights of those individuals to privacy and the protection of personal data.

253. In so far as concerns ‘individual’ interference, affecting a given individual, the disadvantages resulting from a general data retention obligation were very accurately described by Advocate General Cruz Villalón in points 72 to 74 of his Opinion in Digital Rights Ireland. (82) In the words of the Advocate General, the use of such data makes it possible ‘to create a both faithful and exhaustive map of a large portion of a person’s conduct strictly forming part of his private life, or even a complete and accurate picture of his private identity’.

254. In other words, in an individual context, a general data retention obligation will facilitate equally serious interference as targeted surveillance measures, including those which intercept the content of communications.

255. Whilst the severity of such individual interference should not be underestimated, it nevertheless seems to me that the specific risks engendered by a general data retention obligation become apparent in the context of ‘mass’ interference.

256. Indeed, by contrast with targeted surveillance measures, a general data retention obligation is liable to facilitate considerably mass interference, that is to say interference affecting a substantial portion, or even all of the relevant population. This may be illustrated by the following examples.

257. Let us suppose, first of all, that a person who has access to retained data wishes to identify all the individuals in the Member State who have a psychological disorder. Analysing the content of all communications effected within the national territory for that purpose would require considerable resources. On the other hand, by using databases of communications data, it would be possible instantly to identify all the individuals who have contacted a psychologist during the data retention period. (83) I might add that that technique could be extended to any of the fields of specialist medicine registered in a Member State. (84)

258. Now let us suppose that that same person wished to identify individuals opposed to the policies of the incumbent government. Again, analysing the content of communications for that purpose would require considerable resources, whereas, by using communications data it would be possible to identify all individuals on the distribution list of emails criticising government policy. Furthermore, such data would also make it possible to identify individuals taking part in any public demonstration against the government. (85)

259. I would emphasise that the risks associated with access to communications data (or ‘metadata’) may be as great or even greater than those arising from access to the content of communications, as has been pointed out by Open Rights Group, Privacy International and the Law Society of England and Wales, as well as in a recent report by the United Nations High Commissioner for Human Rights. (86) In particular, as the examples I have given demonstrate, ‘metadata’ facilitate the almost instantaneous cataloguing of entire populations, something which the content of communications does not.

260. I would add that there is nothing theoretical about the risks of abusive or illegal access to retained data. The risk of abusive access on the part of competent authorities must be put in the context of the extremely high number of requests for access to which reference has been made in the observations submitted to the Court. In so far as the Swedish regime is concerned, Tele2 Sverige has stated that it was receiving approximately 10 000 requests monthly, a figure that does not include requests received by other service providers operating in Sweden. In so far as the United Kingdom regime is concerned, Mr Watson has reproduced a number of extracts from an official report which records 517 236 authorisations and 55 346 urgent oral authorisations for 2014 alone. The risk of illegal access, on the part of any person, is as substantial as the existence of computerised databases is extensive. (87)

261. In my view, it falls to the referring courts to determine, in accordance with the case-law referred to in point 247 of this Opinion, whether the disadvantages caused by the general data retention obligations at issue in the main proceedings are not disproportionate, within a democratic society, to the objectives pursued. In carrying out that assessment, those courts must weigh the risks posed by such obligations against the advantages they offer, which are the following:

– the advantages associated with giving the authorities whose task it is to fight serious crime a certain ability to examine the past, (88) and

– the serious risks which, in a democratic society, arise from the power to catalogue the private lives of individuals and to catalogue a population in its entirety.

262. That assessment must take account of all the relevant characteristics of the national regimes at issue in the main proceedings. I would emphasise, in this connection, that the mandatory safeguards described by the Court in paragraphs 60 to 68 of Digital Rights Ireland are no more than minimum safeguards aimed at limiting the interference with the rights enshrined in Directive 2002/58 and Articles 7 and 8 of the Charter to what is strictly necessary. Consequently, a national regime which includes all of those safeguards may nevertheless be considered disproportionate, within a democratic society, as a result of a lack of proportion between the serious risks engendered by such an obligation, in a democratic society, and the advantages it offers in the fight against serious crime.

VI – Conclusion

263. In light of the foregoing, I propose that the Court’s answer to the question referred for a preliminary ruling by the Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm, Sweden) and the Court of Appeal (England & Wales) (Civil Division) should be as follows:

Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (‘Directive on privacy and electronic communications’), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, and Articles 7, 8 and 52(1) of the Charter of Fundamental Rights of the European Union are to be interpreted as not precluding Member States from imposing on providers of electronic communications services an obligation to retain all data relating to communications effected by the users of their services where all of the following conditions are satisfied, which it is for the referring courts to determine in the light of all the relevant characteristics of the national regimes at issue in the main proceedings:

– the obligation and the safeguards which accompany it must be provided for in legislative or regulatory measures possessing the characteristics of accessibility, foreseeability and adequate protection against arbitrary interference;

– the obligation and the safeguards which accompany it must observe the essence of the rights recognised by Articles 7 and 8 of the Charter of Fundamental Rights;

– the obligation must be strictly necessary in the fight against serious crime, which means that no other measure or combination of measures could be as effective in the fight against serious crime while at the same time interfering to a lesser extent with the rights enshrined in Directive 2002/58 and Articles 7 and 8 of the Charter of Fundamental Rights;

– the obligation must be accompanied by all the safeguards described by the Court in paragraphs 60 to 68 of its judgment of 8 April 2014 in Digital Rights Ireland and Others (C‑293/12 and C‑594/12, EU:C:2014:238) concerning access to the data, the period of retention and the protection and security of the data, in order to limit the interference with the rights enshrined in Directive 2002/58 and Articles 7 and 8 of the Charter of Fundamental Rights to what is strictly necessary; and

– the obligation must be proportionate, within a democratic society, to the objective of fighting serious crime, which means that the serious risks engendered by the obligation, in a democratic society, must not be disproportionate to the advantages which it offers in the fight against serious crime.

2 Madison, J., ‘Federalist No. 51’, in Hamilton, A., Madison, J., and Jay, J., ed. Genovese, M.A., The Federalist Papers, Palgrave Macmillan, New York, 2009, p. 120. Madison was one of the principal authors and one of the 39 signatories of the United States Constitution (1787). He went on to become the fourth President of the United States (from 1809 to 1817).

3 This ability to ‘examine the past’ may be especially helpful in identifying potential accomplices: see points 178 to 184 of this Opinion.

5 Directive of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (‘Directive on privacy and electronic communications’) (OJ 2002 L 201, p. 37), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11).

7 Directive of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54).

8 It is understandable that this should be so, given that the national regimes were intended to transpose the directive, which has now been declared invalid.

9 See the description of the national regimes at issue in the main proceedings given in points 11 to 13 and 36 of this Opinion.

10 Opinion 2/13 of 18 December 2014 (EU:C:2014:2454, paragraph 179), and the judgment of 15 February 2016 in N. (C‑601/15 PPU, EU:C:2016:84, paragraph 45 and the case-law cited).

11 In accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, regard must be had to the explanations relating to the Charter when interpreting the Charter (see judgments of 26 February 2013 in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 20, and 15 February 2016 in N., C‑601/15 PPU, EU:C:2016:84, paragraph 47). According to those explanations, Article 7 of the Charter corresponds to Article 8 of the ECHR, while Article 8 of the Charter does not correspond to any right in the ECHR.

12 See, inter alia, judgments of 9 November 2010 in Volker und Markus Schecke and Eifert (C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 40 and the case-law cited), and 24 April 2012 in Kamberaj (C‑571/10, EU:C:2012:233, paragraph 42 and the case-law cited).

13 See, inter alia, judgment of 16 September 1982 in Vlaeminck (132/81, EU:C:1982:294, paragraph 13); order of 24 March 2011 in Abt and Others (C‑194/10, EU:C:2011:182, paragraphs 36 and 37 and the case-law cited); and judgment of 24 October 2013 in Stoilov i Ko (C‑180/12, EU:C:2013:693, paragraph 46 and the case-law cited).

16 Directive of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).

19 Judgment of 10 February 2009 in Ireland v Parliament and Council (C‑301/06, EU:C:2009:68, paragraph 80).

20 Since Directive 2002/58 may be regarded as a lex specialis vis-à-visDirective 95/46 (see Article 1(2) of Directive 2002/58), I do not think it necessary to verify the compatibility of general data retention obligations with the regime established by Directive 95/46, which, moreover, is not mentioned in the questions that have been referred to the Court. For the sake of completeness, I would nevertheless add that the wording of Article 13(1) of Directive 95/46 allows the Member States greater latitude than that of Article 15(1) of Directive 2002/58, the scope of which is limited to the sphere of the provision of publicly available electronic communications services. Since the possibility provided for in Article 15(1) of Directive 2002/58 enables the Member States to impose general data retention obligations, I infer that Article 13(1) of Directive 95/46 does also.

22 The Court’s settled case-law indeed states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. Accordingly, the Court has already pointed out that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of EU law. On the other hand, if such legislation falls within the scope of EU law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures (see judgment of 26 February 2013 in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 19 and the case-law cited).

28 See, in particular, United Nations Human Rights Council, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression of 17 April 2013, A/HRC/23/40, paragraph 33: ‘Technological advancements mean that the State’s effectiveness in conducting surveillance is no longer limited by scale or duration. … As such, the State now has a greater capacity to conduct simultaneous, invasive, targeted and broad-scale surveillance than ever before.’ See also paragraph 50: ‘Generally, legislation has not kept pace with the changes in technology. In most States, legal standards are either non-existent or inadequate to deal with the modern communications surveillance environment.’

29 I shall nevertheless come back to the specific risks posed by the creation of such vast databases when I address the requirement of proportionality, within a democratic society, pertaining to general data retention obligations such as those at issue in the main proceedings. See points 252 to 261 of this Opinion.

30 See, on this point, the argument put forward by Open Rights Group and Privacy International, summarised in point 104 of this Opinion.

31 I find confirmation of the cumulative nature of the requirements in the last sentence of Article 15(1) of Directive 2002/58, which provides that ‘all the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) [TEU]’. Pursuant to Article 6(1) TEU, ‘The Union recognises the rights, freedoms and principles set out in the [Charter], which shall have the same legal value as the Treaties’.

32 As a logical consequence of their cumulative nature, where the requirements of those two provisions overlap, the stricter of the two must be applied, that is to say, the requirement that affords greater protection of the right in question.

34 See, inter alia, judgments of 17 October 2013 in Schwarz (C‑291/12, EU:C:2013:670, paragraph 35) (interference provided for by an EU regulation); 27 May 2014 in Spasic (C‑129/14 PPU, EU:C:2014:586, paragraph 57) (interference provided for by the Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, which was signed on 19 June 1990 and came into force on 26 March 1995); 6 October 2015 in Delvigne (C‑650/13, EU:C:2015:648, paragraph 47) (interference provided for by the French Electoral Code and the French Criminal Code); and 17 December 2015 in Neptune Distribution (C‑157/14, EU:C:2015:823, paragraph 69) (interference provided for by an EU regulation and an EU directive).

39 More precisely, the Court cannot, in my view, adopt an interpretation of the requirement for a legal basis that is more permissive than that of the ECtHR, one that would allow more instances of interference than would result from the ECtHR’s interpretation of that requirement.

40 The concept of ‘provided for by law’ is used in Article 8(2) ECHR (right to respect for private and family life) (‘in accordance with the law’), Article 9(2) ECHR (freedom of thought, conscience and religion) (‘prescribed by law’), Article 10(2) ECHR (freedom of expression) and Article 11(2) ECHR (freedom of assembly and association) (‘prescribed by law’). In the Charter, Article 52(1) applies to any limitation on the exercise of the rights enshrined in the Charter, where such limitations are in fact permitted.

43 See, in particular, ECtHR, 14 September 2010, Sanoma Uitgevers B.V. v. The Netherlands, EC:ECHR:2010:0914JUD003822403, § 83: ‘the [word “law”] which [appears] in Articles 8 to 11 of the [ECHR includes] both “written law”, encompassing enactments of lower ranking statutes and regulatory measures taken by professional regulatory bodies under independent rule-making powers delegated to them by Parliament, and unwritten law. “Law” must be understood to include both statutory law and judge-made “law”.’

44 That requirement does not emerge from the wording of Article 15(1) of Directive 2002/58 or from the general structure of Directive 2002/58, for the reasons which I set out in points 99 to 116 of this Opinion.

45 See the description of the national regimes at issue in the main proceedings given above, especially points 13 and 36.

46 Digital Rights Ireland, paragraph 54. See the description of the national regimes at issue in the main proceedings, at points 29 to 33 and 45 and 46 above.

52 As regards proportionality, stricto sensu, see points 246 to 262 of this Opinion.

53 The Commission too has emphasised that the additional value of general data retention obligations over and above that of targeted data preservation lies in this limited ability to examine the past: see the Commission’s Staff Working Document annexed to the proposal for a directive which led to the adoption of Directive 2006/24, SEC(2005) 1131, 21 September 2005, Section 3.6, ‘Data Preservation versus Data Retention’: ‘with only data preservation as a tool, it is impossible for investigators to go back in time. Data preservation is only useful as of the moment when suspects have been identified — data retention is indispensable in many cases to actually identify those suspects’.

54 The French Government has referred in this connection to the report of its Conseil d’État entitled Le numérique et les droits fondamentaux, 2014, pp. 209 and 210. The Conseil d’État states that a system of targeted surveillance measures ‘would be significantly less effective than systematic data retention from the point of view of national security and identifying criminals. Such a system affords no retrospective access to exchanges that took place before the authorities identified a threat or discovered a crime: its operational character would thus depend on the authorities’ ability to anticipate whose connection data might be useful, something which it would be impossible for the judicial police to do. In the case of a crime, for example, a court would have no access to communications effected prior to the crime, even though that information could be valuable or even indispensable in identifying the offender and his accomplices, as has been shown by certain recent cases involving terrorist attacks. In the sphere of the prevention of acts endangering national security, new technical programmes rely on an ability to detect weak signals, something which is incompatible with the concept of the advance targeting of dangerous persons’.

55 The Commission’s Staff Working Document annexed to the proposal for a directive which led to the adoption of Directive 2006/24, SEC(2005) 1131, 21 September 2005, Section 1.2, ‘The importance of traffic data for law enforcement’.

56 See, inter alia, judgments of 22 January 2013 in Sky Österreich (C‑283/11, EU:C:2013:28, paragraphs 54 to 57); 13 November 2014 in Reindl (C‑443/13, EU:C:2014:2370, paragraph 39); and 16 July 2015 in CHEZ Razpredelenie Bulgaria (C‑83/14, EU:C:2015:480, paragraphs 120 to 122). In legal theory, see, in particular, Pirker, B., Proportionality Analysis and Models of Judicial Review, Europa Law Publishing, Groningen, 2013, p. 29: ‘Under a necessity test, the adjudicator examines whether there exists an alternative measure which achieves the same degree of satisfaction for the first value while entailing a lower degree of non-satisfaction of the second value.’

57 See Rivers, J., ‘Proportionality and variable intensity of review’, The Cambridge Law Journal, vol. 65, issue 1 (2006) 174, p. 198: ‘The test of necessity thus expresses the idea of efficiency or Pareto-optimality. A distribution is efficient or Pareto-optimal if no other distribution could make at least one person better off without making any one else worse off. Likewise, an act is necessary if no alternative act could make the victim better off in terms of rights-enjoyment without reducing the level of realisation of some other constitutional interest.’

58 On the two elements of the test of necessity, see Barak, A., Proportionality: Constitutional Rights and their Limitations, Cambridge University Press, Cambridge, 2012, pp. 323 to 331.

62 See paragraph 65 of Digital Rights Ireland: ‘It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary’ (my italics).

65 See the ‘Issue Paper on the rule of law on the Internet and in the wider digital world’, published by the Council of Europe Commissioner for Human Rights, December 2014, CommDH/IssuePaper(2014)1, p. 115, the report of the United Nations High Commissioner for Human Rights (Human Rights Council) on the right to privacy in the digital age of 30 June 2014, A/HRC/27/37, paragraph 26, and the report of the Special Rapporteur (United Nations, General Assembly) on the promotion and protection of human rights and fundamental freedoms while countering terrorism of 23 September 2014, A/69/397, paragraphs 18 and 19.

66 That observation relates solely to general data retention obligations (which are liable to cover all persons whether or not they have any connection with a serious crime), not to targeted surveillance measures (which are focused on persons who have already been identified as being connected with a serious crime). On this distinction, see points 178 to 183 of this Opinion.

67 The German Government in particular stated at the hearing that the German Parliament had excluded emails from the retention obligation imposed under German law, but that its regime covered all users and all of the national territory.

68 See Barak, A., Proportionality: Constitutional Rights and their Limitations, Cambridge University Press, Cambridge, 2012, p. 344: ‘The first three components of proportionality deal mainly with the relation between the limiting law’s purpose and the means to fulfil that purpose. … Accordingly, those tests are referred to as means-end analysis. They are not based on balancing. The test of proportionality stricto sensu is different. … It focuses on the relation between the benefit in fulfilling the law’s purpose and the harm caused by limiting the constitutional right. It is based on balancing’ (my italics).

69 ECtHR, 12 January 2016, Szabó and Vissy v. Hungary, EC:ECHR:2016:0112JUD003713814, § 68: ‘Indeed, it would defy the purpose of government efforts to keep terrorism at bay, thus restoring citizens’ trust in their abilities to maintain public security, if the terrorist threat were paradoxically substituted for by a perceived threat of unfettered executive power intruding into citizens’ private spheres by virtue of uncontrolled yet far-reaching surveillance techniques and prerogatives. In this context the Court also refers to the observations made by the Court of Justice of the European Union and, especially, the United Nations Special Rapporteur, emphasising the importance of adequate legislation of sufficient safeguards in the face of the authorities’ enhanced technical possibilities to intercept private information.’

71 I would nevertheless clarify that this requirement for a prior, independent review cannot, in my view, arise from Article 8(3) of the Charter, since the Charter does not apply, as such, to national provisions governing access to retained data: see points 123 to 125 of this Opinion.

73 United Nations Human Rights Council, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism of 28 December 2009, A/HRC/13/37, paragraph 62: ‘there must be no secret surveillance system that is not under the review of an effective oversight body and all interferences must be authorised through an independent body’ (see also paragraph 51). See also the Report of the Special Rapporteur (United Nations, General Assembly) on the promotion and protection of human rights and fundamental freedoms while countering terrorism of 23 September 2014, A/69/397, paragraph 61.

74 See point 212 of this Opinion. As regards journalists’ sources, the ECtHR has emphasised the need for prior authorisation by an independent body, inasmuch as an ex post facto review cannot re-establish the confidentiality of such sources: see ECtHR, 22 November 2012, Telegraaf Media Nederland Landelijke Media B.V. and Others v. The Netherlands, EC:ECHR:2012:1122JUD003931506, § 101, and ECtHR, 12 January 2016, Szabó and Vissy v. Hungary, EC:ECHR:2016:0112JUD003713814, § 77. In its judgment in Kopp v. Switzerland, which concerned the surveillance of a lawyer’s telephone lines, the ECtHR criticised the fact that an official within the authority was instructed to filter out information covered by professional privilege, without any oversight on the part of an independent court: see ECtHR, 25 March 1998, Kopp v. Switzerland, EC:ECHR:1998:0325JUD002322494, § 74.

75 See, in this connection, the mechanism described in point 22 of this Opinion. I would emphasise that this issue was not addressed by the Court in Digital Rights Ireland.

76 See, on this point, judgment of 6 October 2015 in Schrems (C‑362/14, EU:C:2015:650).

77 See ECtHR, 4 December 2015, Roman Zakharov v. Russia, EC:ECHR:2015:1204JUD004714306, § 254 and 255. Under Russian law, intercept material must be destroyed after six months of storage if the person concerned has not been charged with a criminal offence. The ECtHR considered the six-month storage time limit set out in Russian law for such data reasonable. At the same time, it deplored the lack of any requirement to destroy immediately any data that are not relevant to the purpose for which they have been obtained and stated that the automatic storage for six months of clearly irrelevant data could not be considered justified under Article 8 of the ECHR.

78 See, in particular, judgments of 15 February 2016 in N. (C‑601/15 PPU, EU:C:2016:84, paragraph 54; the necessity of the measure was examined in paragraphs 56 to 67, its proportionality in paragraphs 68 and 69); 16 July 2015 in CHEZ Razpredelenie Bulgaria (C‑83/14, EU:C:2015:480, paragraph 123; the necessity was addressed in paragraphs 120 to 122, its proportionality in paragraphs 123 to 127); and 22 January 2013 in Sky Österreich (C‑283/11, EU:C:2013:28, paragraph 50; the necessity of the measure was examined in paragraphs 54 to 57, its proportionality in paragraphs 58 to 67).

79 See Rivers, J., ‘Proportionality and variable intensity of review’ in The Cambridge Law Journal, vol. 65, issue 1 (2006) p. 174, at p. 198: ‘It is vital to realise that the test of balance has a totally different function from the test of necessity. The test of necessity rules out inefficient human rights limitations. It filters out cases in which the same level of realisation of a legitimate aim could be achieved at less cost to rights. By contrast, the test of balance is strongly evaluative. It asks whether the combination of certain levels of rights-enjoyment combined with the achievement of other interests is good or acceptable.’

80 See Pirker, B., Proportionality Analysis and Models of Judicial Review, Europa Law Publishing, Groningen, 2013, p. 30: ‘In its simple form, one could state that proportionality stricto sensu leads to a weighing between competing values to assess which value should prevail.’

81 The particular nature of the requirement of proportionality stricto sensu by comparison with the requirements of appropriateness and necessity may be illustrated by the following example. Let us suppose that a Member State were to require every person residing within its territory to have a geopositioning electronic chip injected into their body, one that enabled the authorities to retrace the comings and goings of the wearer over the past year. Such a measure might be considered ‘necessary’ if no other measure were capable of achieving the same degree of effectiveness in the fight against serious crime. However, to my mind, it would be disproportionate within a democratic society, since the disadvantages resulting from the interference with the rights to physical integrity, privacy and the protection of personal data would be disproportionate to the advantages offered in terms of the fight against serious crime.

83 The data retained include the identity of the sender and the recipient of every communication, and it would merely be necessary to cross-reference that data with a list of telephone numbers of psychologists practising in the country.

84 See, in this connection, United Nations Human Rights Council, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism of 28 December 2009, A/HRC/13/37, paragraph 42: ‘in Germany, research showed a chilling effect of data retention policies: 52 percent of persons interviewed said they probably would not use telecommunication for contact with drug counsellors, psychotherapists or marriage counsellors because of data retention laws’.

85 Since the data retained include the location of the source and destination of every communication, any person initiating or receiving a communication during a demonstration could easily be identified using that data. Marc Goodman, an FBI and Interpol expert on the risks posed by new technologies, relates that, recently, the Ukrainian Government proceeded to identify, during an opposition demonstration, all mobile telephones located in the vicinity of street battles between law enforcers and government opponents. All those telephones then received a message which Mr Goodman describes as maybe the most Orwellian text message a government’s ever sent: ‘Dear subscriber, you are registered as a participant in a mass disturbance’ (Goodman, M., Future Crimes, Anchor Books, New York, 2016, p. 153). See also United National Human Rights Council, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 17 April 2013, A/HRC/23/40, paragraph 75, and the report of the United Nations High Commissioner for Human Rights (Human Rights Council) on the right to privacy in the digital age, 30 June 2014, A/HRC/27/37, paragraph 3.

86 See the report of the United Nations High Commissioner for Human Rights (Human Rights Council) on the right to privacy in the digital age, 30 June 2014, A/HRC/27/37, paragraph 19: ‘in a similar vein, it has been suggested that the interception or collection of data about a communication, as opposed to the content of the communication, does not on its own constitute an interference with privacy. From the perspective of the right to privacy, this distinction is not persuasive. The aggregation of information commonly referred to as “metadata” may give an insight into an individual’s behaviour, social relationships, private preferences and identity that go beyond even that conveyed by accessing the content of a private communication’ (my italics). See also the report of the Special Rapporteur (United Nations, General Assembly) on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 23 September 2014, A/69/397, paragraph 53.

87 See, in particular, United National Human Rights Council, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 17 April 2013, A/HRC/23/40, paragraph 67: ‘Databases of communications data become vulnerable to theft, fraud and accidental disclosure.’